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Recent Federal Cases

Below is a quick guide to recent cases. This area is updated with new cases by NJCA researchers on a weekly basis. Click on the arrows to see a full summary.

Recent Federal Cases

  • 11 December 2018 —

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

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

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

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

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

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

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

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

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

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    appeal against sentence — importing a commercial quantity of a border controlled drug offence contrary to s 307.1(1) of Commonwealth Criminal Code — offence related to 787g of pure methamphetamine — one other offence taken into account pursuant to s 16BA — original sentence imposed 6 years’ and 9 months imprisonment with 3 year and 9 month non-parole period — guilty plea — s 16A(2)(g) — sentencing judge did not refer to s 16A(2)(g) or specifically refer to offender’s early plea of guilty or to any mitigation of sentence to take account that plea — failure to expressly refer to plea and any discount on sentence allowed to reflect its value to justice system does not necessarily demonstrate failure to take plea into account — clear from sentencing proceedings that sentencing judge aware that applicant had acknowledged guilt at early stage and entered guilty plea to principal offence — equally clear that sentencing judge understood that full recognition of benefit to criminal justice system of early plea should be extended to offender — always preferable for sentencing judge to specifically refer to early plea and quantify discount on sentence, failure to do so does not necessarily establish error — manifest excess — starting point for considering whether sentence is manifestly excessive is the maximum penalty specified for the offence; here, life imprisonment — indicator of how seriously community regards importation of controlled drugs, and seriousness with which courts are obliged to treat such crimes — sentencing judge’s task was to have regard to that statutory guidepost and relevant principles of sentencing law, to take into account the offence on a schedule before the court, to give weight to offender’s personal circumstances, and arrive at sentence that did justice to community and offender — that is a discretionary exercise — sentencing judge allowed offender benefit of all positive features of subjective case and varied ratio of sentence considerably in offender’s favour — sentence imposed was a modest one — leave to appeal granted — appeal dismissed
  • 9 November 2018 —

    R v MI [2018] NSWCCA 251 — conspiring to import drug offence — co-operation

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    appeal against sentence — conspiring to import a commercial quantity of border controlled precursor pseudoephedrine offence contrary to ss 11.5 and 307.11 Commonwealth Criminal Code — original sentence imposed 6 years’ and 6 months imprisonment with 4 year non-parole period — co-operation — s 16A(2)(h) — sentencing judge took into account offender’s past cooperation and provided explicit discount for proposed future assistance — total discount of 25% for assistance, 12.5% for past and 12.5% for future assistance — offender did not give evidence in accordance with undertaking — issue whether offender should be re-sentenced to sentence offender would have received if no discount for future assistance — three subsidiary issues — first, whether any failure to cooperate (whether entire or partial) was without reasonable excuse — second, whether, if so, any failure is characterised as entire or partial. If former, Court must intervene and remove entirety of discount. If latter, Court may intervene and may adjust sentence as Court sees fit — third, if failure partial, whether and to what degree sentence should be adjusted — offender’s change of heart motivated by nothing more than general fear of “a few” threats made in custody, and offender unable to determine whether “genuine or not” — threats made to offender before giving of undertaking — threats have little or no relevance, for reason that they did not operate upon mind of offender to deter offender from agreeing to cooperate with authorities — offender partially complied with undertaking when offender provided further statement, despite its brevity — whilst statement was ineffectual in assisting prosecution, one should adopt a position of abundant caution towards such a question — one should exercise restraint in affirmatively finding failure to comply with undertaking has been “entire” — provision of concise statement provides no reason to refrain from removing entirety of discount afforded for future assistance — worthlessness of partial compliance; intransigent position adopted by offender; fact that offender undoubtedly gained unearned benefit; absence of power factor to contrary; need to maintain benefits and detriments that underpin system of encouraging giving of assistance by offenders to authorities, including honouring of undertakings to do so, combine to argue powerfully in favour of removal of entirety of discount provided for future assistance — sentence should continue to reflect discount provided for past assistance but entirety of reduction for future assistance should, as matter of discretion, be removed — original sentence quashed — resentenced to 8 years’, 1 month and 2 weeks imprisonment with 5 year non-parole period
  • 29 October 2018 —

    Harvey v The Queen [2018] WASCA 188 — attempting to possess and traffic control drug offences — nature and circumstances of the offence — specific deterrence — general deterrence

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    appeal against sentence — trafficked a trafficable quantity of a controlled drug substance, 7.71g of methamphetamine, dealt with money where there was a risk that the money would become an instrument of crime and was reckless as to the fact that there was a risk it would become an instrument of crime, attempted to possess a marketable quantity of an unlawfully imported substance of a border controlled drug, dealt with money that was intended to become an instrument of crime and possessed a controlled drug substance, namely 0.2g of MDMA and 0.3g of methamphetamine offences contrary to ss 302.4(1), 400.4(2), 11.1(1), 400.6(1) and 308.1(1) of Commonwealth Criminal Code respectively — total effective sentence imposed 8 years’ 6 months imprisonment with 6 year non-parole period and a $1000 fine — amount of drugs offender attempted to possess in dispute — offender communicated with unknown male located overseas who arranged for someone to bring a quantity of methamphetamine into Australia — offender had been instructed to take possession of a package and pay that person $10,000 — AFP officers arrested person carrying the package which contained 500g of rice — offender then apprehended — jury found that offender believed package contained and offender intended to possess more than a marketable quantity of methamphetamine (2g) — matter for sentencing judge to decide — crown submitted offender believed he was taking possession of between 160-363g of methamphetamine (worth $80,000), offender submitted that offender intended to purchase $10,000 worth of methamphetamine (around 28g) — nature and circumstances of the offence — s 16A(2)(a) — not open to sentencing judge to find beyond reasonable doubt that appellant intended to take possession of $80,000 worth of pure methamphetamine — 3 facts relied on to draw the inference as to quantity were of insufficient weight in combination to support sentencing judge’s findings beyond reasonable doubt — concealed package (rice) weighed 500 g — Crown asserted that this fact suggested appellant expecting quantity of drugs ‘at least somewhat consistent’ with weight of contents of package — impermissibly assumes that appellant expecting package that contained pure drugs only, not diluted by or concealed within something else — relevant telephone intercept material was ambiguous — expert evidence that $80,000 would buy 160g-363g of pure methamphetamine — relied on this evidence to support inference appellant intended to possess between 160-363g of pure methamphetamine — importance of this evidence depends on first being satisfied appellant intended to possess $80,000 of pure methamphetamine — existence of this ‘fact’ involves bootstraps reasoning — reasonable inference that appellant intended to purchase $10,000 worth of pure methamphetamine or about 28g — sentencing judge could not have been satisfied beyond reasonable doubt appellant intended to purchase at least 100g of pure methamphetamine and sentencing judge erred in doing so — appellant should have been sentenced for attempted purchase of approximately 28g of pure methamphetamine for $10,000 — resentence — appellant put before court material to take into account in event appellant resentenced — specific deterrence — s 16A(2)(j) — general deterrence — s 16A(2)(ja) — deterrence, both general and specific, is of paramount importance — generally, personal factors, while not irrelevant, will carry less weight — weight of drugs is relevant consideration, but not generally most important factor — purity of drugs, where known, is often regarded as significant — sophistication of illegal enterprise and role offender payed are relevant considerations, though it may often be difficult to determine offender’s place in drug hierarchy — offender resentenced to total effective sentence of 5 years’ 6 months imprisonment with 3 year and 8 month non-parole period
  • 26 October 2018 —

    R v Ann Lakiss [2018] NSWDC 309 — carriage service to menace/harass/offend — general deterrence — specific deterrence — antecedents — nature and circumstances of the offence — guilty plea — objective seriousness

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    sentence — use of carriage service to menace/harass/offend offence contrary to s 474.17(1) of Commonwealth Criminal Code — state offence — further offence of use of carriage service to menace offence contrary to s 474.17(1) of Commonwealth Criminal Code taken into account pursuant to s 16BA — general deterrence — s 16A(2)(ja) — general deterrence is important — clear message must be sent to community, and in particular like-minded members of community, that Parliament has proscribed lengthy prison terms for such offences, and that courts will impose custodial sentences in appropriate cases — specific deterrence — s 16A(2)(j) — specific deterrence is paramount consideration here also, given offender’s criminal history and history of non-compliance with court orders — antecedents — s 16A(2)(m) — nature and circumstances of the offence — s 16(2)(a) — guilty plea — s 16A(2)(g) — objective seriousness — criminal antecedents disentitle offender to any leniency in sentencing process — offender was 19 years of age at the time of offending conduct and offender’s immaturity which must be taken into account in the sentencing process — offender entitled to a utilitarian discount on sentence of 10% for late plea of guilty — lower objective seriousness of offending, significant subjective matters, including young age at time of offending, struggle with addiction to prohibited drugs, and progress made since, over a period of 3 years with rehabilitation (notwithstanding failure to complete one of three residential rehabilitation courses), and fact offender has full-time employment, lead sentencing judge to conclude that any sentence would be best served in the community by way of a Community Corrections Order — offender sentenced to Community Correction Order for a period of 22 months
  • 15 October 2018 —

    Elomar v The Queen; Elomar v The Queen [2018] NSWCCA 224 — bribery of foreign official offence — injury, loss or damage resulting from offence — guilty plea — character — general deterrence

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    appeal against sentence — conspiring to bribe a foreign public official offence contrary to ss 11.5(1) and 70.2(1) of Commonwealth Criminal Code — offence related to a conspiracy between three co-offenders to pay unknown Iraqi government official or officials US$1 million bribe to secure Iraqi government contracts — two co-offenders who were each sentenced to 4 years imprisonment with 2 year non-parole period and $250,000 fine appealed their sentences — injury, loss or damage resulting from offence — s16A(2)(e) — sentencing judge identified two areas of concern — the first concerned distortion of markets caused by bribery — this concern loses force because what happened to money sent to Iraq unknown — not known whether bribe actually received by Iraqi government officials or whether it was part of an elaborate fraud based on premise that lucrative contracts could only be obtained in Iraq by payment of bribes — if that were only basis for finding of damage, ground may well have been made out — sentencing judge had regard to Second Reading Speech and made reference to parties to convention having desire to stamp out and eliminate culture of bribery among other things — this led to sentencing judge identifying damage from fact that success of enterprise [soliciting of bribes] would have effect of entrenching and encouraging recipient and others to continue to solicit payments — sentencing judge’s findings as to damage appropriate, limited in the way specified i.e. effect of successful ‘scam’ to encourage recipient to continue such conduct — guilty plea — s 16A(2)(g) — sentencing judge aware of controversy at time regarding whether utilitarian value of plea of guilty should be taken into account for purpose of awarding discount — sentencing judge found both utilitarian considerations and subjective intention to facilitate course of justice present — sentencing judge took both matters into account when determining discount — nothing in that approach inconsistent with Jinde Huang aka Wei Lie v Rcharacter — s 16A(2)(m) — sentencing judge erred in finding that “in offences such as the present, good character, while relevant, is not as significant as a mitigating factor” — no evidence offenders’ good character had anything to do with opportunity to contract work in Iraq or facilitation of bribe to foreign officials — significant distinction to be drawn between persons whose claim to good character based upon them not engaged in criminal activity and evidence of good character which goes not only to that subject, but which positively establishes particular person or persons under consideration made positive contribution to society and demonstrated consistent history of philanthropy directed to fellow citizens — re-sentence parityobjective seriousness general deterrence — when comparing objective seriousness and subjective features of three co-offenders little to choose between — only adjustment to make to appealing co-offenders’ sentences reflects success of co-offenders on “good character” ground to reduce their period of imprisonment — a substantial fine of kind imposed by sentencing judge appropriately reflects seriousness of offending and fact offending motivated solely by greed — in area where general deterrence so important, fine of that magnitude remains appropriate — because of strength of good character evidence, offenders are entitled to reduction in sentence but not to reduction in fine imposed — appeal allowed — sentences quashed — both co-offenders re-sentenced to 3 years’ and 4 months imprisonment with 1 year and 8 month non-parole period and $250,000 fine
  • 5 October 2018 —

    Fung v The Queen [2018] NSWCCA 216 — dealing with money intending to be instrument of crime — guilty plea — objective seriousness — antecedents

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    appeal against sentence — dealing with money in excess of $1,000,000 with intention it would become instrument of crime offence contrary to s 400.3(1) of Commonwealth Criminal Code — two other related offences taken into account pursuant to s 16BA — original sentence imposed 6 years’ and 4 months imprisonment with 4 year 6 month non-parole period — guilty plea — s 16A(2)(g) — sentencing judge erred by failing to taking into account utilitarian value of guilty plea — resentencing — as specific error identified, Court’s duty to re-sentence “…unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed” (Kentwell v R) — other than maximum penalty, important considerations include offender’s belief that money or property was the proceeds of crime; precisely what offender did; the period of time over which transactions constituting offence were carried out; amount involved and offender’s role; whether money or property was beneficially the offender’s and if not, the value of any intended reward — objective seriousness — offence contrary to s 400.3(1) is serious and general deterrence is of particular importance — offender engaged in a deliberate planned course of conduct over period of more than a month with full awareness that conduct was criminal and having at least strong suspicion that money may have been derived from particularly nefarious criminal conduct — occupied highly valued role in well organised and sophisticated international money laundering syndicate — offender’s participation integral to success of syndicate’s money laundering — antecedents — s 16A(2)(m) — offender’s prior criminal history does not entitle him to leniency, but not regarded aggravating factor — considering all relevant factors no different sentence than sentence imposed should have been passed — leave to appeal granted — appeal dismissed
  • 2 October 2018 —

    Nguyen v Comptroller-General of Customs [2018] WASCA 170 — smuggling offence — manifest excess — objective seriousness — antecedents

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    appeal against sentence — three counts of importing prohibited imports of ‘ice pipes’ offence contrary to ss 50 and 51 of Customs Act 1901 (Cth) — original sentence fine of $60,000 and order to pay respondent’s costs — offender appealed both fine and costs order to General Division this appeal only concerned fine — manifest excess totality — appellate court can intervene only if offender demonstrates express or implied material error — express error involves acting on a wrong principle — implied error arises where end result so unreasonable or unjust that court must conclude that substantial wrong has occurred — offence should be viewed in light of maximum sentence prescribed by law, standards of sentencing customarily imposed with respect to it, the place that criminal conduct occupies in scale of seriousness of crimes of that type, and offender’s personal circumstances — first limb of totality principle requires total effective sentence imposed on offender who committed multiple offences bear proper relationship to overall criminality involved, having regard to all relevant facts and circumstances, all relevant sentencing factors and total effective sentences imposed in comparable cases — range of sentences customarily imposed for a crime does not establish range of sound exercise of sentencing discretion — real question is whether total effective sentence outside available sentencing range — multiple or continuing offences — s 4K — court may impose one penalty in respect of multiple federal offences joined in same information, complaint or summons — penalty imposed cannot exceed sum of maximum penalties that could be imposed — accordingly maximum global fine was $510,000 (as court could not determine the value of the goods imported) and the jurisdictional limit for such a fine was $102,000 — objective seriousness antecedents — s 16A(2)(m) — offender engaged in series of importations which involved degree of planning — offender planned to sell imported pipes for significant profit as part of an ongoing commercial operation — offender knew pipes were prohibited imports and took steps to avoid detection — significant harm to Australian community would follow from consumption of methylamphetamine which ice pipes were designed and intended to facilitate — fact that offender was registered pharmacist relevant — offender must have appreciated damaging effects of methylamphetamine and manner of use in community — offending serious in these circumstances — leave to appeal refused — appeal dismissed
  • 24 September 2018 —

    Aliano v Ashwood [2018] TASSC 44 — counterfeit money offences — cumulative and concurrent sentences

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    appeal against sentence — offender convicted of possession of counterfeit money, making counterfeit money and possession of material used for counterfeiting offences contrary to ss 9(1)(a), 6 and 11(2)(b) of Crimes Currency Act 1981 (Cth) respectively — state offences — original sentence imposed for state offenses 6 months’ imprisonment backdated to 6 June — original sentence imposed for Commonwealth offences 20 months’ imprisonment commencing 6 December with offender to be released on recognizance after 10 months — cumulative and concurrent sentences — s 19 — sentencing judge correctly imposed separate sentences in respect of State and federal offences — in those circumstances s 19(3) required sentencing judge to "direct when each federal sentence commences", but so that it did not commence later than end of State sentences — purpose of provisions in s 19 concerning commencement of federal sentence and interaction with a State sentence is to ensure that there is no hiatus between end of custodial portion of State sentence and commencement of custodial portion of federal sentence — offender argues that by fixing commencement of federal sentence as specific date, rather than specifying that federal sentence was cumulative upon State sentence, such a hiatus has arisen, or offender has been deprived of right to be considered for remission of part of imposed State sentence — provision for remission arises under s 86 of Corrections Act 1997 (Tas) — as commencement date for federal sentence fixed, practical capacity of Director to grant remission effectively removed — even if grant of remission made, fixed commencement date of federal sentence will result in hiatus between sentences — effect of remission would be that offender released at conclusion of remitted State sentence, but would have to return to custody to serve federal sentence — although practical difficulties and potential unfairness arise from setting of fixed commencement date — West Australian Court of Appeal in Mercanti held that under s 19(1) it is necessary to set specific date and "an order that a sentence be served cumulatively does not achieve this" — as this interpretation has been determined by an intermediate appellate court in another Australian jurisdiction it should not be departed from unless court is convinced that interpretation is plainly wrong (Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485) — interpretation not plainly wrong — it follows that sentencing judge had no alternative than to fix specific date for commencement of federal sentence — not necessary for this date to be end of full period of state sentence but in circumstances of case, failure to backdate federal sentence does not constitute error — instead matter entirely within sentencing judge’s discretion — appeal dismissed
  • 17 September 2018 —

    Nixon v Commissioner of Police [2018] QDC 188 — using carriage service to make threat to cause serious harm — antecedents — manifest excess — contrition — s 19B

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    appeal against sentence — two counts of using carriage service to make threat to cause serious harm offences contrary to s 474.15 of Commonwealth Criminal Code — original sentence imposed recording of conviction and fine of $1000 — antecedents — s 16A(2)(m) — sentencing judge did not err in focusing on nature of charges rather than appellant’s circumstances — sentencing judge merely compared case to one where victim had prompted threats — no relevant (mitigating) relation between circumstances of appellant and actions which amounted to offence — professional status of offender within broad approach to antecedents — difficulty with submission that court should not proceed to conviction because result would affect offender’s prospect of practicing in profession is that it engages consideration of whether profession’s governing body or offender’s future clients could have so little interest in learning of conduct constituting offence that matter should end without record — court may expect more than bare assertion that conviction would destroy offender’s prospects — manifest excess — offender argued sentence manifestly excessive “by the recording of a conviction” — to establish manifest excess error must be shown in exercising discretion — if upon facts sentence is unreasonable or plainly unjust, the court may infer failure to exercise discretion — assessing whether federal sentence excessive requires court to consider maximum penalty and all matters in s 16A as “are relevant and known to the court” — contrition — s 16A(2)(f) — s 19B — offender argued s 19B engaged because of character, antecedents, age, health or mental condition (s 19B(1)(b)(ii)) and because offences committed under extenuating circumstances (s 19B(1)(iii)) — but for lawyer’s assertion that defendant accepted behaviour was inappropriate, there was no indication of remorse — sentencing judge not wrong to conclude that level of remorse very low — lack of remorse need not exclude application of s 19B(1)(b)(i) —practical difference between order under s 20(1)(a) and order under s 19B is conviction — proceeding to conviction is “punishment”, indeed more than “a nominal punishment” — these were not trivial examples of offence — proper consideration of matters in s 16A would cause a court to proceed to conviction — absence of express conclusion not to proceed under s 19B does not show error — sentencing judge, having examined s 19B(1) matters was not persuaded any of them called for consideration of so-called second step — appeal dismissed
  • 3 September 2018 —

    Musa v The Queen [2018] NSWCCA 192 — drug offences — guilty plea

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    appeal against sentence — attempting to possess marketable quantity of border controlled drug offence contrary to ss 11.1(1) and 307.6(1) of Commonwealth Criminal Code — original sentence imposed 5 years’ and 6 months imprisonment with 3 year and 6 month non-parole period — offences related to attempted possession of 709.4 grams of methamphetamine — guilty plea — s 16A(2)(g) — sentencing judge’s reasoning consistent with sentencing law current at time sentence passed —Xiao v R entitled sentencing judges under sentencing proceedings governed by s 16A to take utilitarian value of plea into account in sentence — sentencing judge’s discount of 20 percent somewhat less than what would have allowed for full utilitarian benefit of plea — instead discount of 25% for full utilitarian value applied — starting point of sentencing judge’s sentence appropriate given objective circumstances of offending and subjective attributes of offender — appeal upheld — original sentence quashed — offender resentenced to 5 years’ and 2 months imprisonment with non-parole period of 3 years and 3 months
  • 3 September 2018 —

    Kristenson v The Queen [2018] NSWCCA 189 — use of carriage service to send indecent material — guilty plea — general deterrence —  specific deterrence — rehabilitation — deportation

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    appeal against sentence — using carriage service to send indecent material to person less than 16 years of age offence contrary to s 474.27A(1) of Commonwealth Criminal Code — offence related to a rolled up charge concerning several chats with persons less than 16 years — original sentence imposed 1 year and 9 months’ imprisonment with offender to be released on recognizance after 1 year 3 months and 23 days — guilty plea — sentencing judge in error in not having regard to utilitarian value of offender’s guilty plea — offender entitled to considerable credit for early admissions to police and entry of guilty plea at first available opportunity — Xiao establishes that offender entitled to discount for utilitarian value of plea — given error offender must be resentenced — general deterrence — s 16A(2)(ja) — these types of offence can have profound impact upon victims who are vulnerable due to young age — intrinsic harm is caused by indecent internet communications with children even if repercussions do not become apparent immediately — difficulty of detecting this behaviour and need to protect children from online predators means that general deterrence is of great importance — specific deterrence — s 16A(2)(j) — fact that no steps taken prior to sentencing by offender to undergo counselling of concern given offender’s failure to demonstrate insight into impact of offending upon children involved — there is a need for specific deterrence at least to some extent — rehabilitation — s 16A(2)(n) — positive conclusion about offender’s prospects of rehabilitation difficult to make — while psychologist’s evidence that offender unlikely to reoffend not directly contradicted, absence of evidence from offender means psychologist’s evidence given little weight — offender does have some prospect of rehabilitation based on affidavit evidence showing offender regrets offending — deportation — offender’s possible deportation not taken into account in accordance with position in New South Wales (R v Mirzaee [2004] NSWCCA 315, R v Van Hong Pham [2005] NSWCCA 96 and AC v R [2016] NSWCCA 107) — even if Victorian (Guden v R (2010) 28 VR 288) and Queensland (R v Schelvis; R v Hilderbrand [2016] QCA 294) approach adopted this is a case where evidence about offender’s likely deportation speculative — if there is to be a challenge to long standing New South Wales approach to relevance of possible deportation to sentencing, this case not an appropriate vehicle for such a challenge — leave to appeal granted — offender resentenced to 1 year and 6 months’ imprisonment with offender to be released on recognizance after 12 months
  • 24 August 2018 —

    Blango v The Queen [2018] VSCA 210 — drug offences — objective seriousness — instinctive synthesis — antecedents — guilty plea

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    appeal against sentence — attempting to possess commercial quantity of unlawfully imported border controlled drug offence contrary to ss 11.1(1), 307.5(1) of Commonwealth Criminal Code, attempting to possess marketable quantity of contrary to ss 11.1(1), 307.6(1) of Commonwealth Criminal Code — first two charges rolled up charges representing 33 and 4 separate instances of criminality — offences related to attempted possession of 55.9578 kilograms of ice, 725.3 grams of heroin and 28.89 grams of cocaine — offender member of criminal syndicate that imported and distributed border controlled drugs — offender’s role to take possession of large numbers of consignments that arrived in Australia — original sentence imposed 16 years’ and 6 months imprisonment with 12 year and 6 month non-parole period — objective seriousness instinctive synthesis — sentence not manifestly excessive — offender held senior and trusted managerial role in criminal syndicate operating large and lucrative drug trade — offender aware that large quantities of drugs were being imported — offender made consistent and concerted efforts to take possession of drugs, even after informed that customs officers delayed delivery of consignment — single consignments cannot be isolated from conduct as a whole — sentence imposed well within range of sentences available due to objective gravity of offending and high moral culpability — antecedents — s16A(2)(m) — sentencing judge gave appropriate weight to offender’s traumatic childhood and acknowledged that it would have impaired capacity for reasoned decision-making — offender intelligent individual who chose to commit offences for reason of profit and greed rather than poverty, deprivation or ill-health — offender had extensive criminal history which demonstrates persistent disregard for law and rights of other citizens — criminal history relevant to weight given to mitigating circumstances and specific deterrence — breached previous CBO and CCO orders and failed to take advantage of opportunities for rehabilitation afforded — guilty plea — s 16A(2)(g) — s 6AAA declaration — offender’s submission that s 6AAA declaration evidences that total effective sentence manifestly excessive rejected — well established that, due to artificiality in formulation of s 6AAA declaration and fact that instinctive synthesis involves balancing sentencing considerations, such a declaration generally not to be taken to exhibit error — sentencing judge gave appropriate weight to offender’s guilty plea — individual sentences for three charges and orders for cumulation not manifestly excessive — total effective sentence of severity appropriate in all the circumstances — appeal dismissed
  • 15 August 2018 —

    R v Hutchinson [2018] NSWCCA 152 — child exploitative materials offences — objective seriousness — recognizance release order — manifest inadequacy

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    appeal against sentence — two counts of using carriage service to transmit child exploitative materials offences contrary to s 474.17(1) of Commonwealth Criminal Code — state offence — sentencing judge imposed sentence of 12 months’ imprisonment with recognisance release orders after serving 3 months for each Commonwealth offence and 6 months’ imprisonment for State offence — total effective sentence imposed was 1 year and 5 months’ imprisonment with minimum custodial component of 8 months — second commonwealth count was a rolled-up charge involving four unidentified victims — objective seriousness — list of factors that may bear upon assessment of objective seriousness of offences concerning child abuse material in Minehan v R [2010] NSWCCA 140 of assistance to sentencing judges —list of factors not closed and appropriate to update list — 9th item on list amended to include deception to read: “The degree of planning, organisation, sophistication and/or deception employed by the offender in acquiring, storing, disseminating or transmitting the material.” — a new 10th item added to list to read: “The age of any person with whom the offender was in communication in connection with the acquisition or dissemination of the material relative to the age of the offender.” — it has been said that viewing sample of material is necessary for judicial officer to obtain full appreciation of its nature which is significant in assessment of objective seriousness of offence — no binding authority that viewing a sample essential — incumbent on prosecuting authorities to provide written description of material — in vast majority of cases that should suffice — in present case description of material within statement of facts reasonably detailed so viewing sample of material not necessary — no requirement for sentencing judge to identify and articulate every possible feature that bears upon assessment of objective seriousness — sentencing judge not in error in finding that that objective seriousness “in the low range” — taken to have meant that objective seriousness somewhere between the middle and bottom of range — difficult to be precise in stating objective seriousness — recognizance release order — s 19AC(1) — sentencing judge clearly in error in making recognizance release order in respect of each Commonwealth sentence — sentencing judge should have determined sentence for each and then determined single recognizance release order if total sentence 3 years or less or non-parole period otherwise — whether this error has any practical impact on overall sentence is not apparent — if sentencing judge being mindful of totality determined there should be overall sentence of 1 year 5 months with minimum custodial component of 8 months sentencing judge could have achieved that by making single order that offender be released on recognizance after serving 5 months of sentence — manifest inadequacy — sentences very lenient — more emphasis on general and specific deterrence and denunciation should have been reflected — present case should not be regarded as benchmark for assessment of sentences in other cases — however unable to conclude that sentences are unreasonable or plainly unjust as to be manifestly inadequate — appeal dismissed  
  • 10 August 2018 —

    R v Agius; R v Castagna (No 14) [2018] NSWSC 1248 — conspiracy to defraud Commonwealth offences — injury, loss or damage — objective seriousness — general deterrence — delay

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    sentence — one count of conspiracy to defraud Commonwealth offence contrary to ss 29D and 86(1) of Crimes Act 1914, one count of conspiracy to defraud Commonwealth offence contrary to s 135.4(3) of Commonwealth Criminal Code and one count of conspiring to deal with money or other property which was proceeds of crime, believing it to be proceeds of crime and the value of money or other property was $1 million or more offence contrary to ss 11.5(1) and 400.3(1) of Commonwealth Criminal Code — need for two conspiracy counts due to amendment to relevant statutory provisions which took effect on 24 May 2001 — offences concerned a conspiracy over approximately 11 years between two offenders to conceal one offender’s true assessable income from Commissioner of Taxation using foreign companies and foreign bank accounts controlled by other offender as well as ongoing conspiracy to deal with unpaid tax value of which was $1 million or more — injury, loss or damage — s 16A(2)(e) — objective seriousness — Australian income tax system based on “self-assessment” — testimony from ATO revealed that ATO “rel[ies] on the honesty of the taxpayer to tell us what is their assessable income and allowable deductions” offending therefore involved abuse of trust — offending difficult to detect, onerous to investigate and time-consuming and expensive to prove — conspiracies involved sophisticated deceit, use of foreign bank accounts and secrecy conferred by laws of Vanuatu — offending in conspiracy counts very serious — dealing in proceeds of crime offence incorporates additional criminality because it concerned transfer of proceeds under guise of loans which permitted offender to use funds for further enrichment through property development — offences involved deliberate dishonesty for financial gain to detriment of Australian community — offenders felt entitled to conspire because they considered themselves members of financial elite who were not subject to obligations to which others must conform —tangible loss from offending $2,622,371.56 while intangible loss is loss of confidence in efficacy and integrity of taxation system — general deterrence — s 16A(2)(ja) — general deterrence highly significant in conspiracy matters — important that those who engage in tax fraud appreciate that it is a serious crime for which they may be imprisoned — sentences imposed must be sufficient to deter those who regard payment of tax as voluntary or an obligation which can be defeated by use of deceit — delay — delay relevant to sentencing in various respects — “uncertain suspense” in which a person can be left for an extended period of time can be taken into account — an offender may demonstrate progress towards rehabilitation in intervening period — a sentence for stale crime calls for a measure of flexibility — evidence did not establish any tardiness from AFP or ATO in investigating charges or bringing them to trial — proof of offences required documents many of which could not be obtained despite several attempts and legal proceedings — regardless justice requires measure of understanding and flexibility where there has been a significant delay between time offender becomes aware of risk of prosecution and imposition of a sentence — this is so even where considerable portion of delay was inevitable consequence of complexity of offences committed — sentence imposed on Mr Agius 7 years’ and 6 months imprisonment with 4 year non-parole period joined to a previously imposed sentence — sentence imposed on Dr Castagna 7 years’ imprisonment with 4 year non-parole period
  • 9 August 2018 —

    R v Shaktu [2018] SASCFC 77 — drug offence involving importation of pseudoephedrine — contrition

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    appeal against sentence — importing a marketable quantity of border controlled precursor namely 367.8 grams of pure pseudoephedrine offence contrary to s 307.12 of Commonwealth Criminal Code — original sentence imposed 3 years’ and 6 months imprisonment with 2 year non-parole period — contrition — s 16A(2)(f) — sentencing judge stated in judgment “You have shown no contrition for this offending, pleading not guilty and going to trial. That tempers your claim to have rehabilitated yourself” — offender submitted that these remarks indicate that offender’s decision to plead not guilty and insist on trial played some role in counterbalancing lengthy period of good behaviour — nothing in remarks indicates that sentence increased on account of offender pleading not guilty and contesting matter at trial — when read in context clear that sentencing judge was balancing offender’s prospects of rehabilitation against offender’s lack of contrition — offender played essential role in serious drug importation and has not expressed contrition — no process error made out — sentence comparable to and lenient compared to sentences imposed by other courts for similar Commonwealth offending — appeal dismissed
  • 29 June 2018 —

    Chia v The Queen [2018] WASCA 103 — fraud offence — manifest excess — objective seriousness — mental condition — antecedents

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    leave to appeal against sentence — dishonestly appropriating property from a Commonwealth entity offence contrary to s 131.1(1) of Commonwealth Criminal Code — two further offences taken into account pursuant to s 16BA of Crimes Act 1914 (Cth) being one count of forgery offence contrary to s 144.1(1) of Commonwealth Criminal Code and one count of using forged document offence contrary to s 145.1(1) of Commonwealth Criminal Code — original sentence imposed 1 year and 6 months’ imprisonment with 2 year recognisance release order after 9 months — manifest excess — to establish manifest excess necessary for offender to demonstrate that sentence was unreasonable or plainly unjust — orthodox approach to an allegation of manifest excess is to examine sentence imposed, having regard to maximum penalty, standards of sentencing customarily imposed with respect to that offence, place that the criminal conduct occupies on the scale of seriousness of offences of that kind and personal circumstances of the offender — objective seriousness — offence committed was, as sentencing judge said, serious — offender was aware of grandmother’s death and aware that entitlement she had to receive an age pension ceased upon her death — offender repeatedly appropriated grandmother’s aged pension over period of 3 ½ years — transfers totalled $56,439.60 — considerable criminality further aggravated by false information offender gave to Centrelink to effect that offender was living from savings and received no income from any other source — furthermore offender forged a life certificate and sent it to Centrelink — mental condition — s 16A(2)(m) — sentencing judge accepted that offender suffered from major depressive illness which was to some extent causative of offending and reduced to some extent weight given to general and specific deterrence — none of expert reports stated that offender’s ability to know what offender was doing was wrong was affected — while effect of general and specific deterrence was moderated, both remained relevant and significant sentencing factors — antecedents — s 16A(2)(m) — while offender was a person of prior good character, good character carries less weight having regard to extended period over which offences committed — sentence imposed was of severity appropriate in all circumstances — sentence not unreasonable or plainly unjust — ground of appeal relied upon by offender no reasonable prospect of succeeding — leave to appeal refused — appeal dismissed
  • 26 June 2018 —

    R v Barany [2018] QCA 137 — child exploitation material offence — miscarriage of justice — antecedents — general deterrence

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    appeal against sentence — making available child exploitation material using carriage service offence contrary to s 474.19(1) of Commonwealth Criminal Code — original sentence imposed 9 months’ imprisonment with immediate 2 year recognizance release order — miscarriage of justice — instructions to submit to sentencing judge that no conviction should be recorded were not carried out — offender’s statement and that of his wife in support of such submission were not conveyed to judge — decision made for forensic purposes — for that reason cannot be concluded that there has been miscarriage of justice — putting to one side and considering case as one in which offender’s advocate simply acted contrary to instructions — miscarriage demonstrated by solicitor’s omission if, having regard to omitted material, conviction might not have been recorded — necessary to consider whether discretion conferred by s 19B(1) might have been invoked by additional material — whether offender’s “character, antecedents, age, health or mental condition” would have rendered it “inexpedient” to inflict any punishment, to inflict only nominal punishment or to release offender on probation — antecedents — s 16A(2)(m) — offender’s character and antecedents were dealt with in psychologist report provided to sentencing judge — submissions regarding travel difficulties associated with conviction not made to sentencing judge — not persuaded issues concerning travel difficulties constitute “antecedents” — evidence falls short of establishing that there will be any effect upon offender’s travel or business if conviction recorded — not established conviction will prevent offender’s entry to any particular country or that tasks associated with travel for business purposes could not be carried out by someone else — any difficulties would constitute no more than the usual burdens that follow conviction for serious offence — other matters raised by offender’s wife in statement that was not submitted did raise matters of fact in mitigation — these matters already addressed in psychologist report and taken into account by sentencing judge — offender’s solicitor’s omission to seek order that no conviction be recorded and omission to put forward statements led to no miscarriage of justice — no facts raised in contested material capable of justifying such an order — general deterrence — s 16A(2)(ja) — Australian community’s denunciation of sexual offences involving children and requirement for general deterrence are reasons why offenders against s 474.19(1) of Commonwealth Criminal Code will almost inevitably be sentenced to term of imprisonment and have conviction recorded — leave to appeal refused
  • 25 June 2018 —

    Peters v The Queen [2018] NSWCCA 126 — child exploitation material offence — guilty plea — totality — objective seriousness

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    appeal against sentence — using carriage service to access child exploitation material offence contrary to s 474.19(1)(a)(i) of Commonwealth Criminal Code — state offence — original sentence imposed 2 years’ imprisonment with recognizance release order after 9 months for Commonwealth offence — guilty plea — s 16A(2)(g) — clear differentiation in sentencing judge’s treatment of guilty pleas to State and Commonwealth offences makes plain that did not take into account utilitarian value of guilty plea for Commonwealth offence — referred to plea being “entered in the face of a strong Crown case” — relevant to subjective factor of degree to which offender willingly facilitated course of justice rather than to objective utilitarian value of plea — applying law as then understood — utilitarian value of pleas to each offence identical — reflecting utilitarian value of plea to Commonwealth offence would allow 25 per cent — totality — sentencing judge indicated during the course of submissions that minded to make more than minimal but something less than complete accumulation — in result accumulation was complete with sentence for Commonwealth offence commencing upon expiration of non-parole period for State offence — no error in judge considering that further period of custody should be required in respect of State offence — error in judge saying intended partial accumulation but imposing total accumulation — objective seriousness — evidence as to which files accessed referred to immediately after stated assessment of objective seriousness of offences — could not prove which files offender had viewed — for example no evidence viewed any of Category 5 material, corollary no evidence not viewed material in that category — 100 files found on offender’s computer thus Commonwealth offence related to only 576 rather than whole 676 files — matters raised do not warrant criticism of sentencing judge’s assessment of objective seriousness of offences as below-midrange but not at bottom of range — appeal allowed — offender resentenced to 1 years’ and 10 months imprisonment with recognizance release order after 9 months
  • 22 June 2018 —

    R v AH [2018] NSWSC 973 — terrorism offence — nature and circumstances of the offence — objective seriousness — age — mental condition — guilty plea — hardship to the offender

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    sentence — doing an act in preparation for, or planning, terrorist act offence contrary to s 101.6(1) of Commonwealth Criminal Code — nature and circumstances of the offence — s 16A(2)(a) — objective seriousness — fact that offender acted alone does not serve to mitigate offence — nature of terrorism offences that frequently committed by “lone wolves” — absence of factor that may aggravate offence does not operate to render less objectively serious —apparent commitment of offender to carry out plan is concerning — already come to attention of authorities in relation to access to extremist violent material, yet renewed online research within six months of police search of family home and renewed with specific purpose in mind namely commission of terrorist act — offender’s claim that did not think intervention was serious because not arrested sits uneasily with trauma offender and family experienced during search and interrogation — may have wavered in commitment but those doubts appear to have been resolved — evidence demonstrates that as at date of arrest offender persevering with stated plan — very limited period of planning — must be observed that offence not necessarily less serious than offences which have advanced beyond initial planning stages — legislative scheme premised on criminalisation of preparatory acts — depth and extent of offender’s radicalisation considerable — barbarous nature of offence that offender actively contemplating — communications with operatives — extremist nature of material which offender had been accessing over period of one year — offender’s religious and ideological motivation apparent from interview with police following arrest despite professed adherence to Australian law — no other penalty than substantial term of full-time imprisonment appropriate in order to reflect factors to which have referred — offence above low end of range of objective gravity — contemplated attack which was ideologically and religiously driven and chosen for impact such attack would have had on public holiday of great national significance — age — mental condition— s 16A(2)(m) — degree to which offender’s youth ameliorates weight to be attributed to general deterrence and denunciation is live issue — offender suffering from major depressive disorder at time of offence — impaired judgment beyond that which recognised as feature of adolescence — degree of overlap between principles attaching to sentencing of juveniles and mitigation of sentence on grounds of mental illness — both recognise that an offender’s moral culpability may be reduced for substantially the same reasons — principles of general deterrence and denunciation play somewhat lesser role in sentencing exercise — can only go so far — guilty plea — s 16A(2)(g) — offender did not plead guilty at earliest opportunity — did so after legal representatives were in position to give full and appropriate advice — considerable utilitarian value in timing of plea — assess value of plea at 20% — hardship to the offender — offender already experienced an assault whilst in custody — notwithstanding trauma and stress occasioned by that event and custodial conditions offender has adjusted satisfactorily — given offender’s exposure to bullying and assaults on basis of nature of offence, special circumstances justifying offender’s detention as juvenile offender up to age of 21 — sentence imposed 12 years’ imprisonment with 9 year non-parole period — to be detained as juvenile until turns 21
  • 22 June 2018 —

    Wagner v The Queen [2018] NSWCCA 124 — child exploitation material offences — guilty plea — totality

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    appeal against sentence — using carriage service to transmit images of child abuse material offences contrary to s 474.19(1) of Commonwealth Criminal Code — state offences — original sentence for first count imposed 1 years’ and 6 months imprisonment — original sentence for second count imposed 2 years’ and 3 months imprisonment — overall original sentence imposed 2 years’ and 9 months imprisonment with 9 month recognizance release order after 2 years for Commonwealth offences — guilty plea — s 16A(2)(g) — sentencing judge stated that took into account guilty pleas but had not treated as manifesting remorse or acceptance of responsibility — no reference to discounting on account of utilitarian value of pleas — in light of clarification provided in Xiao v The Queen [2018] NSWCCA 4 can be seen that offender denied consideration of a basis of mitigation to which effect should have been given — must have applied only minimal discount in order of 10% because of restricted basis upon which considered mitigation could be allowed for guilty pleas — may be inferred that starting-point sentence for count (1) 1 year and 8 months and for count (2) 2 years and 6 months — had allowance been made for utilitarian value of pleas discount of 25% would have been appropriate — resultant sentences would have been for count (1) 1 year and 3 months and for count (2) 1 year and 10.5 months — totality — had sentencing judge taken into account all other considerations as did but allowing full discount for guilty pleas, extent of accumulation would have been to some degree reduced and overall non-parole period would accordingly have been less — date of commencement of sentence for state offence must be altered to adjust degree of accumulation and overall non-parole period — leave to appeal granted — appeal allowed — offender resentenced to 2 years’ 4 months imprisonment with 6 month recognizance release order after 1 year and 10 months
  • 12 June 2018 —

    DPP v Hutchison (a Pseudonym) [2018] VSCA 153 — child exploitation material offence — rehabilitation — antecedents —contrition — age — sentencing practice

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    appeal against sentence — producing child exploitation material for use through carriage service offence contrary to s 474.20(1)(a)(ii) of Commonwealth Criminal Code — state offences — offender discharged without conviction for federal offence under 3 year good behaviour bond — community correction orders imposed for state offences — rehabilitation — s 16A(2)(n) — rehabilitation powerful mitigating factor in relation to such young offender, notwithstanding objective seriousness of offending —  antecedents — s 16A(2)(m) — offender was himself victim of another’s serious offending, offending by adult against vulnerable child — element of persuasion and pressure applied to offender — pressed into offending and offender made efforts to bring matters to halt — in circumstances judge not erred in describing that persuasion and pressure as grooming and encouragement — contrition — s 16A(2)(f) — extent of offender’s shame and remorse exemplified by fact that originally pleaded guilty to more serious offence involving act not shown in video evidence and where such act as alleged by prosecution highly unlikely — age — s 16A(2)(m) — offending committed when offender 16 years old — offender plainly more mature person at time of sentencing than at time of initial offending — entitled to be sentenced for offending on basis that the assessment of nature and gravity of offending and of offender’s moral culpability took into account that acts done as child — sentencing practice — correct to make reference to current sentencing practices in submissions — in this case no sentencing decisions or other authorities compelling particular result —sentence may properly be regarded as merciful but not to say sentence imposed wholly outside permissible range — appeal dismissed
  • 7 June 2018 —

    R v Arrowsmith [2018] SASCFC 47 — drug offence involving attempted importation of unknown amount of pseudophedrine — manifest excess — deportation

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    appeal against sentence — attempting to import border controlled precursor namely an unknown amount of pseudophedrine offence contrary to ss 11.1(1), 11.2A(1) and 307.13(1) of Commonwealth Criminal Code — original sentence imposed 12 months’ imprisonment with immediate 12 month recognisance release order  — offender subsequently charged with failure to comply with the order and offender’s bond was extended for a further 12 months — offender subsequently charged with second failure to comply with the order and offender ordered to serve sentence of imprisonment — manifest excess — deportation — two lines of authority in this Court as to whether prospect of deportation may be taken into account in sentencing — in R v Berlinksy the Court held that possibility of deportation was a matter for the Executive Government of the Commonwealth and not relevant as a sentencing consideration — this decision consistent with a series of decisions in New South Wales and Western Australia — in R v Zhang the South Australian Court of Criminal Appeal followed the different approach adopted in Victoria and Queensland which requires that risk of deportation must be assessable rather than merely speculative before it may be taken into account — subsequent cases have not resolved conflict between authorities —  unnecessary to resolve the conflict between existing approaches — offender’s letter indicates that Department of Home Affairs is still considering request to revoke cancellation of offender’s visa — the Court cannot speculate about a decision that is still to be made by the Minister or delegate — likelihood of offender being deported from Australia is not assessable — for that reason it is immaterial which line of the two lines of competing authority is correct — amendments to Migration Act do not affect position as decision on cancellation still lies with Minister — sentencing alternatives — sentencing judge not in error by rejecting other sentencing options available under s 20A of Crimes Act 1900 (Cth) — decision well within range of sentencing outcomes available to judge where offender shown inability or unwillingness to comply with terms of recognisance release order — permission to appeal refused
  • 18 May 2018 —

    Rosales (a Pseudonym) v The Queen [2018] VSCA 130 — drug offence involving attempted possession of 4.8 kg pure methamphetamine — parity — co-operation

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    appeal against sentence — attempting to possess commercial quantity of border controlled drug offence contrary to ss 11.1 and 307.5 of Commonwealth Criminal Code — original sentence imposed 7 years’ imprisonment with 4 year non-parole period — parity— all things being equal like offenders should be treated alike — relevant differences between culpability and personal circumstances must be appropriately accommodated — error where manifest disparity between co-offenders’ sentences taking into account differences between involvement of offenders and personal circumstances so as to give rise to justifiable sense of grievance — in this case offender’s role greater — offender provided medium level assistance to authorities — little or nothing else distinguishing offender and co-offender — offender’s assistance to authorities justifies the imposition of same sentence as co-offender whose offending was of a lower order — co-operation — ss 16A(2)(h) and 16AC — extent of any sentencing discount given to informer will vary from case to case — no standard discount so assessment of appropriate discount cannot be approached in mechanical or mathematical way — genuine co-operation of person furnishing assistance is important — appeal against sentence refused
  • 18 May 2018 —

    R v Alameddine [No 3] [2018] NSWSC 681 — possession of thing connected with terrorist act offence — nature and circumstances of the offence — objective seriousness — guilty plea — contrition — general deterrence — adequacy of punishment — age

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    sentence — intentional possession of a thing connected with preparation for a terrorist act and recklessness as to the connection of the thing to the preparation for a terrorist act offence contrary to s.101.4(2) of Commonwealth Criminal Code — state offence — nature and circumstances of the offence — s 16A(2)(a) — objective seriousness — high degree of criminality, objectively very serious and strong element of moral culpability — offender’s motive and his knowledge or belief as to use to be made of revolver bear upon objective gravity — if at least sympathetic to extremist views supportive of Islamic State, then this aspect would elevate objective gravity — offender had good idea firearm to be used for terrorist attack committed in name of Islamic State — objective gravity to be determined primarily by assessing nature of thing possessed, nature of possession and its connection with preparation of planning, nature and seriousness of proposed terrorist act, and recklessness of offender — offending more serious closer connection is between the thing and preparation and planning — thing was a loaded revolver capable of immediate use in commission of terrorist act — involvement occupied a period of about 24 hours only — urgency surrounding supply operated to place offender on greater notice of imminent terrorist attack so recklessness more serious — covert nature of meetings, use of counter-surveillance techniques and change in appearance added to objective gravity — guilty plea — s 16A(2)(g) — by definition of offence, plea of guilty admits recklessness but not intention or knowledge as to use to which revolver was to be put for terrorist purpose — discussions commenced with respect to pleas in context of committal proceedings early May 2017, not until July 2017 offer made by offender to plead guilty to present charges with offer accepted by Crown in August 2017 — value of pleas in this case not commensurate with pleas entered in Local Court — appropriate discount for utilitarian value of plea 15% — contrition — s 16A(2)(g) — offender did not give evidence at sentencing hearing — offender committed offences whilst subject to state firearms prohibition order, committed further firearm offences soon after, offences of failure to answer questions before NSW Crimes Commission, disciplinary offences while in custody — guilty plea in face of strong Crown case gives no assistance — statements made by offender to third parties cannot be tested in absence of offender giving evidence — general deterrence — s 16A(2)(ja) — general deterrence is a very important factor to take into account on sentence for a terrorist offence — high degree of general deterrence is to be reflected on sentence — adequacy of punishment — s 16A(2)(k) — one of characteristics distinguishing terrorism from other crimes involving violence is that object is use of violence as instrument of coercion or intimidation — age — s 16A(2)(m) — 22 years old at time of offences — limited weight in light of seriousness of offences and absence of any causal link between offender’s age and criminal conduct — offender sentenced to 7 years’ and 2 months imprisonment with 5 year and 3 month non-parole period, total effective sentence 17 years’ and 8 months imprisonment with 13 year and 6 month non-parole period
  • 11 May 2018 —

    Samarakoon v The Queen [2018] VSCA 199 — dealing with proceeds of crime offences one count less than $100,000 and one count greater than $100,000 and one count of attempting to obtain a financial advantage — nature and circumstances of the offence — objective seriousness — sentencing practice — injury, loss or damage — general deterrence

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    appeal against sentence — dealing with money reasonably suspected of being proceeds of crime one count for less than $100,000 and one count for more than $100,000 offences contrary to ss 400.9(1A) and 400.9(1) of Commonwealth Criminal Code — attempting to dishonestly obtain a financial advantage by deception from a Commonwealth entity offence contrary to ss 11.1(1) and 134.2(1) of Commonwealth Criminal Code — original sentence imposed 3 years’ imprisonment with 3 year recognisance release order after 18 months — nature and circumstances of the offence — s 16A(2)(a) — objective seriousness — although important to assess precisely what offender did in commission of offence, structure and purpose of div 400 support proposition that value of proceeds of crime is paramount consideration in assessing objective seriousness of offence — sentencing judge correct in describing size of payment as most significant objective fact — ss 400.3 to 400.8 create a number of offences in which seriousness of offence depends on fault element involved and value of money — s 400.9 applies where person deals with money or property where it is reasonable to suspect that money proceeds of crime which is objective test — very little room for differentiation based on state of mind or knowledge of accused as to whether money proceeds of crime — if accused believed, or was reckless or negligent as to whether proceeds of crime, would constitute a different and more serious offence — sentencing judge’s assessment of gravity of offending accounted for quantum of money and that offender not simply facultative role but obtained the benefit of the funds — sentencing practice — consistency in sentencing important common law principle that sits within s 16A — regard to comparable cases from intermediate appellate courts across Commonwealth is important aspect of sentencing for federal offences — may provide guidance as to identification and application of relevant sentencing principles — may yield discernible sentencing patterns and possibly range of sentences against which to examine proposed or impugned sentence — failure to have regard to current sentencing practice cannot be established by a judge’s failure to mention them — can be reflected in identification or application of erroneous principle or because sentence shown to be manifestly inadequate or excessive — sentencing judge correct in having regard to intermediate appellate authorities to identify relevant sentencing principle — injury, loss or damage — s 16A(2)(e) — general deterrence — s 16A(2)(ja) — fraud not completed because false claim detected — no further conduct on offender’s part would have been required to complete fraud — no steps to undo wrongdoing indeed offender supplied false documents to substantiate claim — sentencing judge required to take into account that no loss resulted to Commonwealth by offender’s conduct — this to be balanced against fact offender attempted to defraud a large sum of money — dollar value of loss not to be given disproportionate emphasis at expense of general deterrence and denunciation considerations — sentence not wholly outside range of permissible sentences — appeal dismissed
  • 9 May 2018 —

    Stipkovich v The Queen [2018] WASCA 63 — drug offence involving attempted possession of 7.4561 kg of pure methamphetamine — co-operation — rehabilitation

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    appeal against sentence — attempting to possess a commercial quantity of a border controlled drug offence contrary to ss 307.5 and 11.1(1) of Commonwealth Criminal Code — original sentence imposed 14 years’ imprisonment with 11 year non-parole period — co-operation — s 16A(2)(h) — offender and co-offender made substantial admissions at trial — failure to take into account a relevant consideration particularly difficult to make out where no submission made to sentencing judge that should take account of offender’s admissions and sentencing judge presided over trial and aware of admissions — fact sentencing judge did not refer to admissions is inadequate basis to infer failed to take into account — failure to mention a matter that of itself necessarily called for substantial discount might sustain inference that matter not taken into account — offender’s admissions not of that character — in all circumstances open that offender’s admissions not attract any or any substantial weight — rehabilitation — s 16A(2)(n) — although offender did not plead guilty judge discussed relationship between guilty plea and rehabilitation — plea of guilty bears favourably on prospects of rehabilitation — mitigating factors such as plea of guilty and other matters bearing favourably on prospects of offender’s rehabilitation may both decrease length of head sentence and decrease proportion that non-parole period bears to head sentence — appeal dismissed
  • 27 April 2018 —

    R v Biber [2018] NSWSC 535 — foreign fighter offence — guilty plea — nature and circumstances of offence — contrition — delay — specific deterrence — rehabilitation

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    sentence — entering into foreign State with intent to engage in hostile in activity in that State offence contrary to s 6(1)(a) Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) — nature and circumstances of offence — s 16A(2)(a) — although offence of entering foreign State with intention of engaging in armed hostilities carries same maximum penalty as engaging in armed hostilities, does not say seriousness of offender’s conduct ought to be assessed as if engaged in hostilities —circumstances which may give rise to conviction under s 6 so various that is unhelpful to generalise about conduct covered by section — offence has protean character and objective gravity may vary — as offender did not engage in armed hostilities and returned to Turkey of own volition, offence well below mid-range of seriousness — guilty plea — s 16A(2)(g) — contrition — s 16A(2)(f) — utilitarian benefit of guilty plea is a relevant consideration — guilty plea might also be relevant because might reveal intention to facilitate course of justice or contrition — contrition requires not only formal admission of guilt but acknowledgement of wrongdoing and degree of repentance — offender sought as recently as a month before sentence hearing to portray intentions and involvement as humanitarian and non-violent — not satisfied offender feels any remorse or contrition for offending although plainly regrets consequences for himself and his family — delay — delay of two years and nine months after return to Australia in charging offender — delay not explained but may have been result of operational matters — evidence to establish agreed facts must have been known to prosecuting authorities — delay operated unfairly to offender who when not apprehended on return entitled to assume he was free to resume normal life — delay relevant to prospect of rehabilitation and specific deterrence — specific deterrence — s 16A(2)(j) — rehabilitation — s 16A(2)(n) — offender lived with family for almost three years from return to  arrest — no evidence offender did anything to return to Syria or risk safety of Australian community — substantial indicator of prospects of rehabilitation — difficult to assess prospects of rehabilitation where not satisfied that offender feels remorse or contrition for offending — fact that on release offender will live with family in supportive loving environment relevant to rehabilitation and to ratio of non-parole period — offender sentenced to 4 years’ and 9 months imprisonment with 2 year and 6 month non-parole period
  • 27 April 2018 —

    Kim v The Queen [2018] NSWCCA 68 — customs offences — parity — non-parole period

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    appeal against sentence — importing tobacco products with intent to defraud the revenue offence contrary to s 233BABAD(1) of Customs Act 1901 (Cth) — dealing with money more than $1,000,000 which could be instrument of crime offence contrary to s 400.3(1) of Commonwealth Criminal Code — other offence taken into account pursuant to s 16BA — original sentence imposed 6 years’ and 6 months imprisonment, sentencing judge imposed 3 year and 4 month non-parole period for second offence but no non-parole period with respect to first offence — offender eligible for release on parole after serving 4 years and 10 months of sentence — offender and relevant co-offender both charged with defrauding the revenue offence, co-offender also charged with a lesser offence of dealing with proceeds of crime being more than $100,000 — offender and co-offender both sentenced to 2 years’ and 3 months imprisonment with respect to defrauding the revenue offence — parity — in accumulating sentences for co-offender sentencing judge provided that second sentence would start 6 months after commencement of first sentence — with respect to offender provided second sentence would commence 18 months after commencement of first sentence — no difference in culpability of each with respect to defrauding the revenue offence — significant difference in culpability with respect to proceeds of crime offences properly reflected in differential sentences imposed for second offences — no explanation in judgment for different levels of accumulation — proper inference is that it was a mistake by sentencing judge — non-parole period — s 19AB(1) — as sentence in aggregate exceeded 3 years sentencing judge in error by purportedly declining to fix a recognisance release order for first offence and failing to fix single non-parole period commencing on first day of sentence — non-parole period increased by 6 months but commencement date shifted to date of first sentence — expiry date thus 12 months earlier than fixed by sentencing judge — leave to appeal granted — appeal allowed — offender resentenced to 5 years’ and 6 months imprisonment with 3 year and 10 month non-parole period
  • 27 April 2018 —

    Lee v The Queen [2018] NSWCCA 75 — drug importation offence — parity

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    appeal against sentence — importing commercial quantity of border controlled drug offence contrary to s 307.1 of Commonwealth Criminal Code — six other offences taken into account pursuant to s 16BA — original sentence imposed 12 years’ imprisonment with 6 year and 6 month non-parole period — parity— no such thing as perfect consistency because function of imposing sentence on individual has an evaluative and discretionary character — appellate court ordinarily reluctant to intervene — court will not intervene simply because of a discrepancy — discrepancy must engender objectively speaking a justifiable sense of grievance — consideration not just to head sentence but to all components of sentence — offender’s sentence sufficiently differentiated from relevant co-offender’s notional starting point sentence of 16 years to reflect different criminality involved in respective roles and different time period of continued conduct — discrepancy occurs by reason of significant discount allowed to co-offender — reflected co-offender’s earliest possible plea of guilty and significant assistance to authorities — no such assistance by offender and plea of guilty late — leave to appeal refused — appeal dismissed
  • 20 April 2018 —

    Jinde Huang aka Wei Liu v The Queen [2018] NSWCCA 70 — drug importation and dealing with proceeds of crime offences — guilty plea

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    appeal against sentence — importing a commercial quantity of a border controlled drug offence contrary to s 307.1(1) Commonwealth Criminal Code and dealing with proceeds of crime offence contrary to s 400.9(1) Commonwealth Criminal Code — original sentence imposed 16 years’ imprisonment with 11 year non-parole period — guilty plea — s 16A(2)(g) — utilitarian value — Bellew J — sentencing judge did not refer to utilitarian value of offender’s guilty pleas — failed to have regard to that factor — error — Beazley P agreeing stated utilitarian value may not have any impact on appropriate discount already to be applied for subjective willingness to facilitate course of justice — Bathurst CJ agreeing stated that discount for utilitarian value can and should be given even where no subjective willingness to facilitate course of justice — specification of discount — sentencing judge stated discount for guilty plea of 10%–15% for offence contrary to s 307.1(1) and of 5%–10% for offence contrary to s 400.9(1) — Bellew J — sentencing judge did not specify starting point adopted or the respective discount applied other than in terms of a range — significant difference in starting point for offence contrary to s 307.1(1) depending upon discount applied — law strongly favours transparency in the sentencing process —in specification of discount to reflect utilitarian value of plea of guilty, transparency best achieved by precision in expression of discount — McCallum J agreeing stated that error lies in uncertainty produced — permissible to specify a discount in such terms as necessary to avoid sentencing in weeks and days — Bathurst CJ agreeing refrained from deciding but as presently advised agreed error to specify range of discounts — appeal allowed — offender resentenced — offender resentenced to 13 years’ and 6 months imprisonment with 9 year and 5 month non-parole period
  • 18 April 2018 —

    Schanker v The Queen [2018] VSCA 94 — drug importation offences — nature and circumstances of offence — objective seriousness — sentencing practice — antecedents

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    appeal against sentence — attempting to possess a commercial quantity of unlawful imported border-controlled drug offence contrary to ss 11.1(1) and 307.5(1) Commonwealth Criminal Code and trafficking in a commercial quantity of a border controlled drug offence contrary to s 302.2 Commonwealth Criminal Code — original sentence imposed 18 years’ imprisonment with 14 year non-parole period — nature and circumstances of offence — s 16A(2)(g) — objective seriousness — quantity of drug not controlling factor of seriousness of offence — sentence in order of 15 years’ imprisonment for offending not involving massive quantities invites scrutiny — offending of utmost gravity — quantity not massive but very large — drugs involved had high levels of purity, offender occupied commercial role and motivated by financial reward — offender received no benefits of guilty plea — offending occurred while offender on court-imposed Community Correction Order — sentencing practice — offender’s argument elevated importance of sentencing practice to be determinative of sentence’s appropriateness — sentencing practice informs but cannot determine appropriate sentence in particular case — cases suggest high quantity, high value border controlled drug offending where significant levels of responsibility with no discount for guilty plea invariably attract sentences of imprisonment in early to mid-double figures — antecedents — s 16A(2)(m) — offender’s shocking background moderates sentence but there are limits to its ameliorating influence — no specific evidentiary nexus established between background and offending in question — leave to appeal granted — appeal dismissed
  • 11 April 2018 —

    Singh v The Queen [2018] NSWCCA 60 — dealing in proceeds of crime — contrition — cooperation

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    appeal against sentence — two counts of dealing in proceeds of crime contrary to s 400.9(1) Commonwealth Criminal Code and one count contrary to s 142(1) of Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) — original sentence imposed 20 months’ imprisonment with offender to be released on recognisance after 12 months — contrition — s 16A(2)(f) — contrition and remorse factors to be taken into account separately in addition to plea of guilty — those factors often overlap — offender’s submission that sentencing judge must distil factors relevant to question of contrition without reference to plea of guilty not correct — sentencing judge not obliged to accept psychologist report due to absence of sworn evidence from offender — no need to nominate separate Ellis discount for disclosure of unknown guilt — disclosure of home address and of fact substantial funds held at address not significant, police lawfully recorded offender’s conversations so offender under observation prior to arrest — sentencing judge took into account limited disclosures made by offender about own guilt — sentencing judge erred by taking into account disclosure about guilt of another where other person convicted before offender’s disclosure — error immaterial as error in offender’s favour — cooperation — s 16A(2)(h) — sentencing judge did all obliged to do when sentencing judge took into account applicant’s ‘initial assistance in identifying the location of various moneys the subject of the offences in his vehicle and in his home’ — sentencing judge in error by assessing value of assistance provided in respect of other person who was already convicted as significant — error in offender’s favour — overall discount allowed by sentencing judge for cooperation consistent with evidence that assistance of intelligence value only — only error shown in reasons of sentencing judge in favour of applicant — leave to appeal refused — appeal dismissed
  • 9 April 2018 —

    Hoang v The Queen [2018] VSCA 86 — drug importation offence — age — nature and circumstances of offence — objective seriousness

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    appeal against sentence — attempting to possess a commercial quantity of border-controlled drug contrary to s 307.5(1) Commonwealth Criminal Code — state offence — original sentence imposed for federal offence 9 years’ imprisonment with 5 year non-parole period — total effective sentence 10 years’ imprisonment with 6 year non-parole period — age — s 16A(2)(m) — offender youthful — as seriousness of relevant criminal conduct increases, mitigating effects of youth decreases — where degree of criminality of offence requires deterrence, denunciation, just punishment and protection of community to assume prominence in sentencing equation, weight to be attached to youth reduced correspondingly — nature and circumstances of offence — s 16A(2)(a) — objective seriousness — offender held pivotal role in furthering enterprise to import cocaine for purposes of sale in Australia — given offender’s pivotal role, moral culpability is high — general deterrence and need for stern punishment must be given prominence in sentence imposed — total effective sentence within appropriate range — appeal dismissed
  • 6 April 2018 —

    Obiekwe v R [2018] NSWCCA 55 — drug importation offence — guilty plea — nature and circumstances of offence — contrition — deterrence — adequacy of punishment

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    appeal against sentence — importing commercial quantity of border controlled drug contrary to s 307.1 of Commonwealth Criminal Code — original sentence imposed 12 years’ imprisonment with 7 year non-parole period — guilty plea — s 16A(2)(g) — sentencing judge followed decision of Tyler and did not take into account objective value of plea — no greater discount warranted due to unsuccessful attempts by offender to enter plea to lesser offence which would not reflect criminality involved — error established offender re-sentenced — nature and circumstances of offence — s 16A(2)(g) — offender’s conduct serious — no evidence that anyone else involved in Australian end of operation — significant importation of methamphetamine — contrition — s 16A(2)(f) — offender did not give evidence at sentencing hearing although a letter was tendered — letter given some limited weight in assessing offender’s contrition — letter contains some expressions of remorse but reveals little insight into devastation likely to be wreaked by amount of methamphetamine imported — deterrence — s 16A(2)(j)–(ja) — sentence must deter offender from future participation in importation of narcotics — sentence must be of severity to deter others given utter devastation wrought by methamphetamine on victims, users and communities a regular background to proceedings in this Court — adequacy of punishment — s 16A(2)(k) — imprisonment only appropriate sentence in circumstances of case — offender took deliberate steps to hide involvement in importation — compared to similar cases original sentence imposed on offender appears favourable to offender — consistency in federal sentencing not demonstrated by and does not require numerical equivalence — no lesser sentence warranted in law — leave to appeal granted — appeal dismissed
  • 6 April 2018 —

    Huang v The Queen [2018] NSWCCA 57 — dealing in proceeds of crime — guilty plea — other offences — rehabilitation

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    appeal against sentence — dealing in proceeds of crime contrary to s 400.3(1) of Commonwealth Criminal Code — pursuant to s 16BA sentencing judge took into account nine additional offences, five counts of commencing to receive a designated service using a false customer name and four counts of knowingly producing a driver licence in a false name contrary to ss 140(1) and 137(1) of Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) — original sentence imposed 8 years’ imprisonment with 5 year non-parole period — guilty plea — s 16A(2)(g) — sentencing judge erred by not considering utilitarian value of plea — as such offender must be resentenced — plea entered on day trial listed for hearing — in addition case not particularly complex accordingly utilitarian value of plea not high — other offences — s 16BA — sentencing judge entitled to take into account offending conduct of s 16BA offences and nature and seriousness of that conduct — not for purpose of imposing punishment for those offences, but for purposes for which matters on a s 16BA may be taken into account including need for personal deterrence and community’s entitlement to exact retribution — rehabilitation — s 16A(2)(n) — offender engaged in employment since being taken into custody — offenders prospects of rehabilitation more positive than at time of assessment by sentencing judge — appeal allowed — offender resentenced to 6 years’ and 3 months imprisonment with 4 year and 8 month non-parole period
  • 6 April 2018 —

    R v Ostrowski; Ex parte A-G (Cth) [2018] QCA 62 — drug importation offence — objective seriousness — nature and circumstances of offence — manifest inadequacy

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    appeal against sentence — importing commercial quantity of border controlled drug contrary to s 307.1 of Commonwealth Criminal Code — original sentence imposed 8 years’ imprisonment with 2 year and 6 month non-parole period — objective seriousness — by objective measure importation of more than three kilograms of pure methamphetamine very large importation — offender’s conduct in facilitating bad by any objective standard — nature and circumstances of offence — s 16A(2)(a) — offender did not know quantity imported, that was risk offender took by becoming engaged in the activity — ready, willing and able to undertake essential role in importation of large quantity of methamphetamine since prepared to receive package containing cocaine, offender expected to be given money and drugs for personal use in recompense — manifest inadequacy — within discretion of sentencing judge to impose materially less severe sentence upon offender than sentences imposed in other cases raised — non-parole period appears excessively lenient when regard is had to non-parole periods in other cases notwithstanding offender’s more favourable circumstances — for offending of this nature and seriousness, necessary deterrent and punitive effects of sentence not sufficiently reflected in such term of imprisonment when coupled with non-parole period as short as two years six months — sentence itself reveals there must have been error of principle — appeal allowed — offender resentenced to same head sentence with 4 year non-parole period
  • 6 April 2018 —

    R v Ostrowski; Ex parte A-G (Cth) [2018] QCA 62 — drug importation offence — objective seriousness — nature and circumstances of offence — manifest inadequacy

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    appeal against sentence — importing commercial quantity of border controlled drug contrary to s 307.1 of Commonwealth Criminal Code — original sentence imposed 8 years’ imprisonment with 2 year and 6 month non-parole period — objective seriousness — by objective measure importation of more than three kilograms of pure methamphetamine very large importation — offender’s conduct in facilitating bad by any objective standard — nature and circumstances of offence — s 16A(2)(a) — offender did not know quantity imported, that was risk offender took by becoming engaged in the activity — ready, willing and able to undertake essential role in importation of large quantity of methamphetamine since prepared to receive package containing cocaine, offender expected to be given money and drugs for personal use in recompense — manifest inadequacy — within discretion of sentencing judge to impose materially less severe sentence upon offender than sentences imposed in other cases raised — non-parole period appears excessively lenient when regard is had to non-parole periods in other cases notwithstanding offender’s more favourable circumstances — for offending of this nature and seriousness, necessary deterrent and punitive effects of sentence not sufficiently reflected in such term of imprisonment when coupled with non-parole period as short as two years six months — sentence itself reveals there must have been error of principle — appeal allowed — offender resentenced to same head sentence with 4 year non-parole period
  • 29 March 2018 —

    R v Schmidt [2018] QCA 59 — conspiracy offence — parity — objective seriousness

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    appeal against sentence — conspiring with others to traffic in a commercial quantity of a controlled drug contrary to ss 11.5(1) and 302.2(1) of Commonwealth Criminal Code — original sentence imposed 12 years’ imprisonment with 7 year and 6 month non-parole period — offence involved three co-offenders who met with undercover AFP operatives who pretended to be large scale distributors of cocaine — other co-offenders pled guilty — parity — sentencing judge considered offender’s criminality more serious than co-offenders — no error by sentencing judge in description of respective roles of co-offenders — offender’s criminality was more serious and offender did not have substantial mitigating factor of plea of guilty — objective seriousness — sentencing judge correct in considering impossibility of trafficking in substance supplied by AFP — that consideration did not mean that offence not serious — sentence should act as strong general deterrent as well as a heavy punishment for a party who intended to traffic large quantities of dangerous drug — offender’s culpability no less for fact that potential suppliers were AFP officers — relevant test whether involvement of police diminished offender’s culpability — leave to appeal refused — appeal dismissed
  • 29 March 2018 —

    R v Issakidis [2018] NSWSC 378 — conspiracy offences — injury, loss or damage, specific deterrence — general deterrence — antecedents — delay

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    sentence — conspiring with another to dishonestly cause a loss to Commonwealth contrary to s 135.4(5) of Commonwealth Criminal Code — conspiring with another to deal with proceeds of crime valued above $1,000,000 contrary to ss 11.5(1) and 400.3(1) of Commonwealth Criminal Code — offences involved a sophisticated tax fraud scheme and dealing with proceeds of that scheme — essence of Crown case was that offender and co-conspirator agreed to cause a company to make false depreciation claims of hundreds of millions of dollars — proceeds of conspiracy distributed offshore to accounts controlled by entities associated with offender and then repatriated to Australia — injury, loss or damage — s 16A(2)(e) — loss intended to be caused to Commonwealth was $135M — injury suffered from tax fraud is a collective financial injury and loss of confidence in efficacy and integrity of taxation system — specific deterrence — s 16A(2)(j) — Crown contended that sentences imposed should encompass element of specific deterrence given offender not acknowledged wrongdoing and offender may have opportunity to re-enter business world upon release — as superficially attractive as that argument may appear no certainty that offender will be involved in similar criminal activity on release —surprising if offender were prepared to risk more time in custody after release — offender attempted to take own life in shadow of original sentencing proceedings — awful prospect of imprisonment for a person of offenders age, having enjoyed social recognition is difficult to overestimate — general deterrence — s 16A(2)(ja) — doubt about effectiveness of general deterrence in cases of spontaneous acts of violence — prospect that offenders in such cases consider in advance consequences of their actions is likely to be small — position different in cases of well-planned, commercial crimes where extended periods available to contemplate consequences of detection — antecedents — s 16A(2)(m) — offender suffers from series of medical conditions including heart disease, cancer, arthritis and a depressive illness — Crown suggested that need for general deterrence lessens weight of good character — while argument accepted should not derogate from strength of offenders subjective case and extent to which it distinguishes offender from co-conspirator — delay — offender arrested and charged on 24 April 2012 — due to factors outside offender’s control trial process concluded on 13 June 2017 — to some extent these delays should be taken into account in determining sentence — delays are beyond offender’s control and likely to be more significant given offender’s age — serving a sentence starting at offender’s age likely to have caused concerns that might not have been present three or four years earlier — deterioration of offender’s physical and mental health considered — offender sentenced to 10 years’ and 3 months imprisonment with 7 year and 6 month non-parole period
  • 23 March 2018 —

    Rodgers v The Queen [2018] NSWCCA 47 — giving a corrupt benefit offence — commencement of federal sentence — manifest excess — objective seriousness — deterrence

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    appeal against sentence — giving corrupt benefit to Commonwealth public official contrary to s 142.1(1) of Commonwealth Criminal Code — state offences — original sentence imposed 3 years’ imprisonment with 2 year non-parole period for Commonwealth offence — total effective sentence imposed 9 years’ and 6 months imprisonment with 7 year non-parole period — commencement of federal sentence — s 16E — where offender received full credit for presentence custody it is within sentencing judge’s discretion to structure sentences by commencing sentence for Commonwealth offence before commencement of sentences for State offences — if sentences imposed in reverse order sentence for Commonwealth offence would be subsumed within sentences for State offences — objective seriousness — Commonwealth offence serious in context of offender’s involvement in drug supply — committed Commonwealth offence on understanding that would be assisting those involved in serious criminal activity — connection with anticipated serious criminal offending increased objective seriousness of offender’s conduct — deterrence — s 16A(2)(j)—(ja) — general deterrence is a major factor on sentence for those who seek to corrupt a police officer — necessary for sentence for Commonwealth offence to involve level of denunciation and specific and general deterrence — not demonstrated that this was crushing sentence — leave to appeal granted — appeal dismissed
  • 20 March 2018 —

    Merrill (a Pseudonym) v The Queen [2018] VSCA 62 — child exploitation offences — co-operation — manifest excess — victim impact statement

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    appeal against sentence — engaging in sexual intercourse with a child outside Australia contrary to s 272.8(1) Commonwealth Criminal Code — engaging in sexual activity with a child outside Australia contrary to s 272.9(1) Commonwealth Criminal Code — producing child pornography contrary to s 273.5(1)(a)(ii) Commonwealth Criminal Code — state offence — total original sentence imposed 5 years and 3 months’ imprisonment with 3 year non-parole period — co-operation — s 16A(2)(h) — practical difficulties of detection of this kind of overseas offending are well recognized — requires emphasis to be given to general deterrence but also highlights utility in offenders confessing to offences which might otherwise be difficult to prove — offender volunteered admissions in circumstances where had been confronted with some evidence of wrongdoing — even so without offender’s admissions unlikely offender would ever have been prosecuted — discount still applied — manifest excess — offender argued sentence not adequately reflect level of leniency warranted — contended sentences imposed high before co-operation discount applied — offender sought to establish by referring to sentencing practice as evidenced by three cases — maximum penalties for which offender fell to be sentenced greater than maximum penalties applied for offences in cases cited — that three instances cited suggestive of sentencing practice, cannot be determinative of appropriateness of sentence in question and even more so where sample of cases necessarily limited — victim impact statement — victim stated in victim impact statement that offending did not have emotional, psychological or physical impact and that situation improved due to offending — offender not rebutted presumption of harm in respect of victim — fact that child victim of extra-territorial offences perceives that sexual interaction might be to their benefit does not diminish the gravity of offending of this kind — must take into account victim’s dire social and economic circumstances — leave to appeal granted — appeal dismissed
  • 2 March 2018 —

    R v Khaja (No 5) [2018] NSWSC 238 — terrorism offence — objective seriousness — nature and circumstances of offence — antecedents — rehabilitation — guilty plea — specific and general deterrence — other offences

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    sentence — doing acts in preparation for or planning a terrorist act offence contrary to s 101.6(1) of Commonwealth Criminal Code — separate foreign incursion offence contrary to s 119.4(1) of Commonwealth Criminal Code taken into account under s 16BA(1) — objective seriousness — nature and circumstances of offence — s 16A(2)(a) — scale of intended attack relevant to seriousness — offender hoped to kill in order of 50 people — seriousness not necessarily reduced where planning not at advanced stage — planning advanced in sense that offender fully committed — as individual terrorist offender did not depend on others to commit or coordinate attack — most important aspect of readiness was offender’s determination — aimed complete overthrow Australia’s system of law and government — advancement of plans under secrecy required dedication and discipline — no explanation or qualification of objective circumstances offered which could mitigate seriousness — antecedents —s 16A(2)(m) — youth relevant to determining moral culpability — offender young and impressionable but old enough to know planning something appallingly wrong — culpability assessed as very high — rehabilitation — s 16A(2)(n) — whether offender withdrawn from beliefs motivating terrorist offence central to prospect of rehabilitation — offender’s steps towards rehabilitation cannot be judged without ascertaining where ideas came from and considering evidence that shows offender rejected those sources — need evidence offender has disavowed verses of Quran which provided motivation for religious violence — conspicuously lacking any evidence that offender has disavowed verses or is willing to consider refutation by Islamic scholars or clerics or persuasion by psychologists and counsellors — evidence given by psychologist that offender told them that ISIS allegiance renounced given little weight due to second-hand nature and non-specificity — guilty plea — s 16A(2)(g) — entered at last possible moment before jury empanelled — plea not acknowledgement of wrongdoing or expression of remorse or contrition —due to offender’s explicit contempt for Australian laws and non-Muslim Australians, acknowledgement of wrongdoing and demonstration of contrition only credible if it came from offender directly in oral evidence — plea no more than acceptance that conviction inevitable — on basis of utilitarian value alone sentencing judge allowed reduction of 12 months — specific and general deterrence — ss 16A(2)(j)–(ja) — no realistic prospect offender will abandon religiously based hatred of non-Muslim Australians and country’s democratic institutions, can only proceed upon basis that offender likely to remain danger to community upon release — specific deterrence remains strong consideration although must be doubted offender will be personally deterred — general deterrence and incapacitation strongly influential factors in determination of sentence — prevalence of offences aimed at disruption of public order and government in furtherance of Islamic ideology requires significant weight be given to general deterrence, notwithstanding offender’s youth — other offences — s 16BA — circumstances do not warrant higher penalty for primary terrorism planning offence than if that offence stood alone — when foreign incursion offence taken into account it does not indicate that any greater influence be accorded to any sentencing factor — offender warned that application may be made for continuing detention after sentence pursuant to s 105A.23 of Commonwealth Criminal Code — offender sentenced to 19 years’ imprisonment with 14 year and 3 month non-parole period
  • 1 March 2018 —

    R v Alou (No. 4) [2018] NSWSC 221 — terrorism offence — nature and circumstances of offence — objective seriousness — contrition — rehabilitation — guilty plea — victim impact statements — specific deterrence — general deterrence — antecedents — continuing detention scheme

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    sentence — aiding and abetting commission of terrorist act offence contrary to ss 11.2(1) and 101.(1) of Commonwealth Criminal Code — first time offence of aiding and abetting terrorist act or offence of committing terrorist act has come before sentencing court in Australia — nature and circumstances of offence — s 16A(2)(a) — objective seriousness — not universal that culpability of aider less than principal offender — offender was active planner and participant in offence — principal offender could not have committed terrorist act unless equipped by offender and encouraged to do so — moral culpability of offender close to principal offender — offence extremely serious — contrition — s 16A(2)(f) — offender offered no apology to victim’s family — offender’s response devoid of basic humanity — sentencing judge referred to psychologist’s report which found that offender equated “re-evaluating his actions as renouncing his spiritual beliefs” this remained “barrier to rehabilitation and remorse” — rehabilitation — s 16A(2)(n) — offender not taken part in voluntary deradicalisation program — clear that offender remains dangerous to community given views and willingness to act on them — prospects of rehabilitation grim — offender’s refusal to stand at commencement and conclusion of court sessions relevant — issue whether offender prepared to take step expected of all members of community as acceptance of law applying in democratic society — Explanatory Note on the Judicial Process and Participation of Muslims prepared by Australian National Imams Council states that there is no prohibition or restraint on Muslim standing as sign of respect — offender’s approach based on unspecified beliefs — offender has entrenched approach which extends to attitude towards courts — mindset of that type does not assist offender with prospect of rehabilitation — guilty plea — s 16A(2)(g) — offenders plea of guilty not indicator of contrition — plea not evidence of move away from radicalised beliefs — discount purely utilitarian — discount of 15% applied — victim impact statements — family of victim read statement to court — during statement offender sat coldly without emotion or sign of ordinary human feelings — response of offender demonstration of lack of contrition and grim prospect of rehabilitation — specific deterrence — s 16A(2)(j) — refusal to resile from extremist beliefs requires strong element of specific deterrence — general deterrence — s 16A(2)(ja) — strong element of general deterrence in sentencing for terrorist offences — general deterrence more important where offence caused death and harm to community — critical that courts send message that such conduct will be met by severe punishment — antecedents — s 16A(2)(m) — youth given less weight due to seriousness and absence of causal link between age and criminal conduct — continuing detention scheme — continuing detention scheme operates for high risk terrorist offenders — offender warned as to existence and operation of s 105A.23 of Commonwealth Criminal Code — existence of scheme not taken into account in determining appropriate sentence — offender sentenced to 44 years’ imprisonment with 33 year non-parole period
  • 28 February 2018 —

    Naizmand v The Queen [2018] NSWCCA 25 — breach of control order — guilty plea

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    appeal against sentence — five counts of breaching a control order contrary to s 104.27 of Commonwealth Criminal Code — original sentence imposed four years’ imprisonment with 3 year non-parole period — control order issued on basis that offender part of group that supported theology and activities of Islamic State — group considered willing and able to commit terrorist act — offender closely connected to activities of relative charged with terrorist offences — offender did not challenge findings of sentencing judge or argue aggregate sentence excessive — sole ground of appeal whether sentencing judge took into account utilitarian considerations when allowing discount for guilty plea — guilty plea — s 16A(2)(g) — reference to saving need for witnesses exemplified subjective willingness, not utilitarian value consideration — sentencing judge in error in not considering utilitarian value of guilty plea — Court obliged to exercise sentencing discretion afresh — objective seriousness — general deterrence — s 16A(2)(ja) — specific deterrence — s 16A(2)(j) — objective seriousness of offender’s deliberate and repeated defiance of control orders, coupled with need for re-sentencing exercise to reflect continuing need for general and specific deterrence, dictates that no lesser sentence warranted in law — leave to appeal granted — appeal dismissed
  • 21 February 2018 —

    McKenzie v The Queen [2018] VSCA 34 — drug importation offence — commencement of federal sentence — application of state sentencing principles

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    appeal against sentence — importing a commercial quantity of a border controlled drug offence contrary to s 307.1(1) of Commonwealth Criminal Code — state offences — original sentence imposed 20 years’ imprisonment with 16 year non-parole period — offender appealed both federal and state sentences — commencement of federal sentence — s 19(3)(d) — state non-parole period will have been served 967 days before commencement date of federal sentence — sentence in breach of s 19(3)(d) — application of state sentencing principles — offender was sentenced as a serious drug offender for federal and state offences — federal charge is a drug offence and may be used as a qualifying offence for person being sentenced for Victorian drug offence — serious offender provisions of the Sentencing Act 1991 (Vic) do not apply to federal offences — sentencing judge erred in sentencing offender as serious offender in relation to federal charge — appeal allowed — offender resentenced to 18 years’ imprisonment with 14 year non-parole period
  • 19 February 2018 —

    R v Lee [2018] ACTSC 21 — drug importation offence — nature and circumstances of offence — guilty plea — deportation

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    sentence — attempting to possess a commercial quantity of a border controlled drug offence contrary to ss 11.1(1) and 307.5(1) of Commonwealth Criminal Code — nature and circumstances of offence — s 16A(2)(a) — although offending not sophisticated, offender  deliberately attempted to conceal packages — offender flew from Perth to Canberra to obtain package — guilty plea — s 16A(2)(g) — conflict between approach to guilty plea taken in R v Harrington [2016] ACTCA 10 and approach taken in Victorian and New South Wales decisions of Director of Public Prosecutions (DPP) v Thomas [2016] VSCA 237 and Xiao v The Queen [2018] NSWCCA 4 — in Victorian and New South Wales cases, utilitarian value of guilty plea taken into account — Harrington held that, utilitarian value not to be taken into account — sentencing judge “bound by Harrington” and “but for Harrington, [sentencing judge] would have applied a discount of 20%” — deportation — likelihood of deportation not taken into account — offender sentenced to 6 years and 9 months’ imprisonment with 4 year and 9 month non-parole period
  • 7 February 2018 —

    R v Burtt [2018] SASCFC 5 — drug importation offence — parity — general deterrence

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    appeal against sentence — attempting to import a border controlled precursor contrary to ss 11.1(1) and 307.13(1) of Commonwealth Criminal Code — in initial remarks, sentencing judge stated that he would sentence offender to head sentence of 4 years’ imprisonment — subsequent sentence imposed 2 years and 9 months’ imprisonment with offender to be released immediately on recognizance to be of good behaviour for 2 years and 9 months upon paying surety of $300 — manifest inadequacy — double jeopardy principle of particular significance where suspended sentence imposed and appeal is against decision to suspend sentence — not desirable that sentencing judge indicate proposed sentence and subsequently impose different sentence — fact that sentencing judge revised initial view does not of itself demonstrate error in sentencing — parity — no disparity between offender and co-offender’s sentences — parity suggests that head sentence of 2 years and 9 months’ imprisonment not so low as to be manifestly inadequate — general deterrence — s 16A(2)(ja) — general deterrence militates strongly against suspension of sentence of imprisonment imposed for trafficking — due to offender’s efforts to rehabilitate herself, within reasonable exercise of sentencing judge’s discretion to order immediate release on recognizance — leave to appeal denied
  • 5 February 2018 —

    Xiao v The Queen [2018] NSWCCA 4 — insider trading offences — guilty plea — antecedents — parity

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    appeal against sentence — prohibited conduct by person in possession of inside information offences contrary to ss 1043A(1)(d) and 1311(1) of Corporations Act 2001 (Cth) — joint commission offence contrary to s 11.2A of Commonwealth Criminal Code — original sentence imposed 8 years and 3 months’ imprisonment with 5 year and 6 month non-parole period — during ASIC investigation offender permitted to travel to China to complete a doctoral thesis exam and required to return — offender failed to return and subsequently arrested in Hong Kong and extradited to Australia — guilty plea — s 16A(2)(g) — in providing for guilty plea to be taken into account in sentencing, legislature encouraged guilty pleas to provide evidence for remorse or contrition and to assist in administration of justice — in Federal sentencing proceedings, sentencing judge is entitled to take utilitarian value of guilty plea into account — to the extent that Tyler v The Queen, R v Chalmers [2007] NSWCCA 247 and subsequent line of cases provide to the contrary, they should not be followed — desirable for sentencing judge to specify discount — failure of sentencing judge to specify discount would not amount to error — sentencing judge in error in by not having regard to utilitarian value of guilty plea — antecedents — s 16A(2)(m) — limited recognition can be given to the position of a foreign national serving a sentence of imprisonment — offender’s immediately family in China and offender unable to talk to children for two years — sentencing judge in error by not considering this evidence — parity — where marked disparity of sentence between co-offenders giving rise to a justifiable sense of grievance, sentence should be reduced notwithstanding that reduced sentence not otherwise within the permissible range of sentencing options — appeal allowed — offender resentenced to 7 years’ imprisonment with 4 year and 6 month non-parole period
  • 19 December 2017 —

    Feenstra v Pomare [2017] WASC 344 — obtaining financial advantage offence — objective seriousness — s 19B order

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    appeal against sentence — obtaining financial advantage by deception offence contrary to s 135.2(1) of Commonwealth Criminal Code — original sentence imposed 6 months’ imprisonment with offender to be released immediately on recognizance to be of good behaviour for 6 months upon paying surety of $1,000  — offender subsequently applied for s 19B order — offender discharged without conviction on 12 month recognizance — objective seriousness — offending serious as offender misrepresented financial circumstances every fortnight for 2 years and 6 months, totalling 60 false declarations — offender received nearly $30,000 by deception to which offender not entitled — s 19B — orders under s 19B exceptional in nature — offender’s financial circumstances not exceptional — offender’s financial obligations included matters not necessary, including private school fees — offender could have rearranged financial obligations during 2 year and 6 month period of offending — not open to sentencing judge to make s 19B order — appeal allowed — offender to be summoned for resentencing
  • 15 December 2017 —

    R v Williams [2017] QCA 307 — solicitation and use of carriage service to make a threat to kill and menace, harass or offend offences — objective seriousness — parsimony

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    application for leave to appeal against sentence — using a carriage service to cause child exploitative material to be transmitted to himself, using a carriage service to publish child exploitative material, using a carriage service to make a threat to kill, using a carriage service to transmit child exploitative material and using a carriage service to menace, harass or offend offences contrary to Commonwealth Criminal Code — original sentence imposed 3 years’ imprisonment with offender to be released on recognizance after 7 months — objective seriousness — offending behaviour serious as lasted more than one year, calculated and callous, caused serious harm to three victims, and likely to have lasting effect — manifest excess — parsimony — no place for principle of parsimony in sentencing — s 17A(1) only establishes that imprisonment is a penalty of last resort — not incumbent on sentencing judge to calculate and articulate whether sentence of seven months as opposed to four months would produce appreciably different result in terms of corrupting effect — no serious contention that sentencing judge failed to take into account any relevant factor on sentencing — open to sentencing judge to impose sentence of imprisonment notwithstanding offender youthful first-time offender — application for leave to appeal against sentence dismissed
  • 15 December 2017 —

    Stemler v The Queen [2017] NSWCCA 320 — drug importation offence — antecedents — instinctive synthesis — guilty plea

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    appeal against sentence — attempting to possess a marketable quantity of an unlawfully imported border control drug contrary to s 307.6 of Commonwealth Criminal Code — state offence — original sentence imposed 7 years and 9 months’ imprisonment with 5 year and 3 month non-parole period — original sentence arrived at after head sentence corrected and non-parole period left unchanged — non-parole period subsequently amended — antecedents — s 16A(2)(m) — sentencing judge not in error by denying offender leniency because of offender’s previous assault conviction when sentencing judge’s comments read contextually — instinctive synthesis — in exchange between sentencing judge and counsel, sentencing judge indicated that he would “find special circumstances” — no indication in sentencing judge’s reasons that sentencing judge employed two-step process by determining assumed starting point then identifying special circumstances — Court will not ordinarily find error on basis of exchanges between bench and counsel — guilty plea — s 16A(2)(g) — that sentence imposed has ratio of 67% between non-parole period and head sentence does not demonstrate error — that head sentence corrected by reduction of 23% whilst non-parole period reduced by only 8.7% does not demonstrate error — sentencing not to be approached by equation — sentencing judge in error due to lack of transparency in process by which sentencing judge arrived at non-parole period — offender resentenced to 7 years and 9 months’ imprisonment with 5 year non-parole period
  • 8 December 2017 —

    DPP (Cth) v Beattie [2017] NSWCCA 301 — child exploitation offences — totality — specific deterrence

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    appeal against sentence — causing a child to engage in sexual intercourse and activities in presence of offender offences contrary to ss 272.8(2) and 272.9(2) of Commonwealth Criminal Code — state offence — original sentence imposed 10 years’ imprisonment with 6 year non-parole period — offences involved offender located in Sydney paying for and directing sexual acts between adults and children located in the Philippines via real-time video link — application of Rivo v The Queen [2012] VSCA 117 — offender not to be sentenced as if physically perpetrated sexual offences directly upon children — however should not be inferred that offender less morally culpable than if offender had physically committed sexual assault — totality — sentencing judge in error by imposing concurrent sentences based on temporal proximity — concurrent sentences imposed failed to acknowledge separate harm done to each victim — general deterrence — s 16A(2)(ja) — importance of general deterrence as offences committed against children in disadvantaged countries lacking adequate child protection mechanisms — specific deterrence — s 16A(2)(j) — offender’s paraphilic disorder may provide explanation for offending and reduces moral culpability but heightens need for specific deterrence — rehabilitation — s 16A(2)(n) — offender’s desire to cease offending conduct demonstrated by voluntary enrolment in rehabilitative  programmes — prospects of rehabilitation dependant on benefit offender derives from programmes — multiple or continuing offences — s 4K — aggregate sentence imposed pursuant to s 53A of Crimes (Sentencing Procedure) Act 1999 (NSW) and s 4K of Crimes Act — appeal allowed — offender resentenced — overall effective sentence of 14 years’ imprisonment with 10 year non-parole period imposed
  • 28 November 2017 —

    Tran v The Queen [2017] VSCA 346 — drug importation offence — parity — instinctive synthesis

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    appeal against sentence — attempting to possess commercial quantity of unlawfully imported border controlled drug offence — offender sentenced to 8 years’ imprisonment with 5 year non-parole period — multiple offenders — co-offender convicted of importing commercial quantity of border controlled drug offence — co-offender sentenced to 4 years’ imprisonment with 2 year and 6 month non-parole period — co-operation — s 16AC(2) — co-offender gave undertaking to assist authorities in future prosecutions of co-offenders — sentencing judge not in error by holding that but for co-offender’s co-operation, same sentence as offender would have been imposed — parity — appeal court not placed in position of sentencing judge — question to be answered is whether offender entitled to justifiable sense of grievance on an objective consideration of entire circumstances of offence — court must be persuaded that sentence imposed not reasonably open — instinctive synthesis — where more than one offender is being sentenced, sentencing not a mechanical exercise in which circumstances are to be weighed with pretence of arithmetical certainty — resorting to a minute examination of individual circumstances of offending and offenders in attempting to demonstrate sentence not reasonably open is counter to concept of instinctive synthesis — sentencing judge correct in consideration of parity principle — fact that offender and co-offenders charged with different offences does not mean parity considerations do not apply — overall picture of offending similar — sentencing judge correct in finding roles of offender and co-offender were comparable — sentencing judge correct in approaching issue of parity in broad and practical way — leave to appeal against sentence refused — appeal dismissed
  • 24 November 2017 —

    Nguyen v Comptroller-General of Customs [2017] WASC 341 — importation offence — manifest excess

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    appeal against sentence — importing prohibited import offences contrary to s 233(1)(b) of the Customs Act 1901 (Cth) — offender fined $60,000 and ordered to pay costs of $36,500 — offences related to three imports of ‘ice pipe’s totalling 2001 pipes — manifest excess — lack of guidance from case law as to range for sentencing does not leave discretion at large — does not mean particular sentence may not be considered manifestly excessive — penalty imposed at higher end of range but not manifestly excessive — objective seriousness — only use for which such pipes can be used is to smoke an illegal drug which is a known problem in the community — sentencing judge correct in not accepting offender’s claim that he did not know what pipes were for — importation for commercial benefit rather than personal use — while pipes themselves may appear somewhat innocuous, use for which they are put is not — leave to appeal against sentence granted — appeal dismissed
  • 27 October 2017 —

    Dagher v The Queen [2017] NSWCCA 258 — obtaining financial advantage — cooperation — contrition

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    appeal against sentence — obtaining financial advantage by deception offence contrary to s 134.2 of Commonwealth Criminal Code — original sentence imposed 2 years’ imprisonment with 12 month recognizance release order after 12 months — contrition — s 16A(2)(f) — if offending had not been detected by Centrelink no reason that offending would not have continued — not accepted that offender did not know her offending was illegal at the time — offending involved making claims for Carer Payment and Carer Allowance in respect of her children whom she knew were not unwell — reparation — by entering into arrangement with Centrelink to repay money offender was acting in own financial interest — arrangement to repay debt does not demonstrate contrition — cooperation — s 16AC — sentencing judge in error by not identifying what sentence would have been imposed but for undertaking to cooperate with investigating authorities in future — appeal allowed — offender resentenced — but for promise of future cooperation, 2 year and 4 month custodial sentence with recognizance release order after 1 year and 2 months would have been imposed — offender resentenced to 2 year custodial sentence with recognizance release order after 1 year
  • 24 October 2017 —

    DPP (Cth) v Swingler [2017] VSCA 305 — child exploitation — cumulation of sentences — victim impact statements

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    appeal against sentence — use of carriage service to groom and procure persons under 16 years for sexual activity and child exploitation offences contrary to ss 474.19(1), 474.26(1), 474.27A and 474.27(1) of Commonwealth Criminal Code — state offences — original total imposed sentence 23 months’ imprisonment and 3-year CCO — manifest inadequacy — even if offender had only been sentenced for State offences, sentence imposed manifestly inadequate — degree of cumulation does not adequately reflect gravity of separate criminality involved in charges — victim impact statements — offending had ‘deeply destructive’ impact on victims and families — cumulation of state and federal offences — s 19 — no challenge to individual sentences — objective gravity of overall offending with mitigating factors warranted combined state and federal sentence between six and seven years’ imprisonment — when sentencing for multiple federal offences permissible to select ‘base sentence’ which is normally longest of the individual sentences imposed — application of ss 16 and 17 of the Sentencing Act 1991 (Vic) and s 19 of the Crimes Act 1914 (Cth) — state offences to be sentenced first, then federal offences — court must impose separate non-parole periods for state and federal offences — not possible to fix single non-parole period or make recognisance release order to cover both offences — appeal allowed — offender resentenced — total effective sentence 78 months and one hour imprisonment with 54 months non-parole period
  • 11 October 2017 —

    Meadows v The Queen [2017] VSCA 290 — grooming offence — general deterrence — victim of the offence

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    appeal against sentence — grooming offence contrary to s 474.27 of Commonwealth Criminal Code — state offences — original sentence imposed 12 months’ imprisonment with recognizance release order after 3 months on 9 month good behaviour bond —offender believed he was communicating with 12-year-old girl — offender instead communicating with undercover police officer — nature and circumstances of offence — communications occurred over limited period — offender’s conduct highly predatory — that offender prepared to use sexually explicit descriptions in communicating with a child is directly relevant to moral culpability —  victim of the offence — objective seriousness of offending not decreased by absence of actual victim — irrelevant that victim and offender geographically remote — general deterrence —s 16A(2)(ja) — importance of general deterrence in grooming offences — offences difficult to detect — significant public interest in protecting children from predators —  total effective sentence imposed within range reasonably open to sentencing judge — leave to appeal against sentence refused — appeal dismissed
  • 6 October 2017 —

    Voronov v Regina [2017] NSWCCA 241 — tax fraud offences — non-parole period and recognizance release orders — parity

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    appeal against sentence — six counts of tax fraud offences contrary to s 29D of the Crimes Act 1914 (Cth) and ss 134.2(1) and 135.1(5) of Commonwealth Criminal Code — original sentence imposed 6 years and 6 months’ imprisonment with 5 year non-parole period — offender’s mother sentenced for same offences to 6 years and 6 months’ imprisonment with 4 year non-parole period — offender absconded — offender sentenced 7 months later in offender’s absence — no subjective case presented for offender — non-parole period — misapplication of state sentencing principles — sentencing judge in error by fixing non-parole period with regard to offender’s lack of special circumstances, pursuant to state sentencing legislation — rehabilitation — offender’s good conduct in prison indicates good prospects of rehabilitation —  parity — little to distinguish subjective cases of offender and mother — leave to appeal against sentence granted — non-parole period altered — 6 year 6 month custodial sentence imposed with a 4 year non-parole period
  • 4 October 2017 —

    Street v Tasmania Police [2016] TASSC 52 — obtaining financial advantage — non-parole period and recognizance — commencement of federal sentences — deterrence

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    appeal against sentence — two counts of obtaining financial advantage contrary to s 135.2(1) of Commonwealth Criminal Code — state offences — original sentence reparation order of $10,418 and eight months’ imprisonment served cumulatively — sentencing judge imposed single non-parole period of 12 months to apply to all state and Commonwealth offences — non-parole period and recognizance release orders — s 19AJ — sentencing judge in error by fixing single non-parole period in respect of both federal and state or territory sentences of imprisonment — s 19AC — where a federal sentence of imprisonment not exceeding three years is imposed, sentencing judge must make a recognizance release order in respect of that sentence and must not fix non-parole period — sentencing judge in error by failing to make recognizance release order — sentencing judge in error by failing to provide reasons for declining to make recognizance release order pursuant to s 19AC(4)-(5) — commencement of federal sentences — s 19(1) — first federal sentence commences immediately after end of that non-parole period if a non-parole period applies in respect of state or territory sentences — sentencing judge in error by failing to order that federal sentence commences at expiration of aggregate non-parole period — subjective circumstances — offender overpaid $10,418.71 in Commonwealth benefits over two separate periods of 7 months — although relatively short period and modest sum, offender’s conduct blatantly dishonest and repeated — general deterrence — s 16A(2)(ja) — importance of general deterrence as welfare system vulnerable to such conduct — specific deterrence — s 16A92)(j) — importance of specific deterrence as offender incurred 14 debts for overpayment of benefits from 1996-2006 and offender sentenced for similar offending in 2007 and 2011 — subsequent offending commenced relatively soon after offender’s release from prison — significant sentence required to reflect need for general and specific deterrence — offender resentenced — original sentence for Commonwealth offences imposed — federal sentence to commence immediately after end of non-parole period for state offences — offender to be released on recognizance in sum of $5,000 after 4 months imprisonment — release conditional on offender being of good behaviour for two years with supervision of a probation officer during that period

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