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Welcome to the COMMONWEALTH SENTENCING DATABASE

Recent Federal Cases

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

Recent Federal Cases

  • 19 November 2021 —

    Almaouie v The Queen [2021] NSWCCA 274 — terrorism offence — appeal against sentence — guilty plea — Xiao error

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    The offender was sentenced following a plea of guilty for an offence of conspiracy to do acts in preparation for a terrorist act contrary to ss 11.5 and 101.6(1) of the Commonwealth Criminal Code. Offender sentenced for additional state offences. Original sentence imposed 18 years and 10 months imprisonment with a 14 year and 2 month non-parole period. Offender appealed on the basis that the sentencing judge erred in not taking into account the utilitarian value of the plea of guilty and that the sentencing judge erred in commencing the sentence for the firearms offences on 18 December rather than the first day in custody (9 January).  

    Commencement of Sentences: The commission of an error in fixing the commencement date does not necessarily engage any obligation in this Court to re-exercise the sentencing discretion as opposed to adjusting the start date to address the identified error.  

    Guilty Plea: Xiao error identified. A discount of 10% on account of the utilitarian value of the plea is warranted. Offender has behaved generally well in custody but has incurred three breaches of prison discipline and has declined to be assessed for participation in deradicalization programs. If the Court did not interfere with offender’s sentence there would be an unjustified disparity between offender’s sentence and that imposed on Khalid on appeal, given Khalid’s greater role in the offence.  

    Leave to appeal granted. Original sentence set aside. Offender resentenced to 16 years and 6 months imprisonment with a 12 year and 6 month non-parole period.
  • 16 November 2021 —

    Tran v The Queen [2021] VSCA 311 — counterfeit offence — appeal against sentence — manifest excess

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    The offender was sentenced following a plea of guilty to 1 count of possessing counterfeit money contrary to s 9(1) of the Crimes (Currency) Act 1981 (Cth). Original sentence imposed 4 months imprisonment. Offender was sentenced to additional state offences. Offender appealed on the basis that the sentence and commencement date was manifestly excessive.

    Manifest Excess: The imposition of 4 months imprisonment for possession of three $100 counterfeit notes upon an offender who has committed a multitude of other offences and has prior convictions for similar dishonesty offences was entirely appropriate. The relatively low seriousness of offending was reflected in the low sentence, which was 3.33 per cent of the maximum custodial sentence available. The commencement date for the sentence was also unobjectionable. The nominated commencement date had the effect of extending the minimum term before the offender was eligible for parole by 4 months, which represents about 75 per cent of the total effective sentence of 3 years and 9 months. There is nothing unusual about that proportion.

    Appeal dismissed.
  • 11 November 2021 —

    DPP (Cth) v Rivo [2021] VCC 1799 — child exploitation offences — sentence — nature and circumstances — specific deterrence

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    The offender was sentenced following pleas of guilty to 4 counts of encouraging an offence against s 272.9(2) of the Commonwealth Criminal Code, 2 counts of using a carriage service to cause child abuse material to be transmitted to self contrary to s 474.22(1) of the Commonwealth Criminal Code, 1 count of causing a child to engage in sexual intercourse outside Australia contrary to s 272.8(2) of the Commonwealth Criminal Code, 1 count of using carriage service to solicit child abuse material contrary to s 472.22(1) of the Commonwealth Criminal Code, 2 counts of encouraging an offence against s 272.8(2) of the Commonwealth Criminal Code, 1 count of possessing or controlling child abuse material obtained or accessed using a carriage service contrary to s 474.22A(1) of the Commonwealth Criminal Code.  

    Nature and Circumstances: Offending occurred over a 7 month period, but most offending occurred over a two week period. The charges involved the encouragement of sexual exploitation and actual exploitation of a number of children over that period. Offending was entirely motivated by deviant sexual gratification. There is no evidence that gives rise to Verdins considerations or any other principles that may be called in to reduce moral culpability. Offender’s moral culpability in circumstances where offender has committed very similar crimes in the past can only be described as very high.  

    Specific Deterrence: Offending commenced approximately 12 months after expiry of sentence for very similar offending. Offender seeks to shift blame to others. Despite engaging in sex offender program as requirement of previous sentence, offender reoffended in relatively short time and psychological evidence discloses that offender remains a risk to the community.  

    Offender sentenced to 12 years imprisonment with a 9 year non-parole period.
  • 9 November 2021 —

    R v Miller; R v Omar [2021] NSWDC 609 — fraud offence — aiding and abetting offence — sentence — nature and circumstances — mental condition — parity

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    The offenders were sentenced following pleas of guilty to 1 count of conspiring to defraud contrary to s 135.4[1] of the Commonwealth Criminal Code. The offender, Miller, was also sentenced following a plea of guilty to 1 count of aiding and abetting a named employee to deal with proceeds of crime contrary to ss 11.2(1) and 400.9 of the Commonwealth Criminal Code.

    Nature and Circumstances: Miller’s offending was over a short period involving six separate deposits totaling $140,000 and eight withdrawals totaling $135,000. Offender recruited their employee by deceptive means and provided instructions to launder money at their direction. Offender’s role was significant and involved a reasonable amount of money. Offending was moderately serious. As for the joint offence, the offenders and XY conspired to purport to be genuine child care providers and defrauded the Commonwealth Department of Education of $9,274,016. Offending was sustained and deliberate. Two different child care centres were secured to commit the fraud and not utilised legitimately. Offending was planned and well-orchestrated, falling well above the mid-level of objective seriousness. The money sought to be made from the offending was significant and well beyond what was required to fund drug use. The offenders’ conduct continued for over a year, even when they were aware that the operation was under suspicion.

    Mental Condition: Miller’s background influenced their decision to use illicit drugs, which resulted in the offender developing mental health issues. Offender exercised poor judgement in deciding to commit fraud. However, it was sustained conduct over a year on a grand scale. Offender was a crucial player in a planned and deliberate scheme. Offender set out to, and did, secure a huge payment from the Commonwealth Government. The offender, Ibrahim Omar, was diagnosed with testicular cancer in 2020 and subsequently experienced depressed mood and sought out psychological treatment. This medical event is part of Omar’s history but does not inform their offending or raise issues for a custodial sentence. Both offenders’ mental health issues and related substance abuse warrants a modest amelioration to the sentence.

    Parity: XY was sentenced after a reduction of 50 per cent to 4 years imprisonment with a non-parole period of 2 years and 6 months. The offenders and XY were equally complicit, although XY was found by the sentencing judge to be lesser involved and lower in the notional hierarchy than the offenders. The offenders are to be sentenced at the same or a similar starting point to XY, with Miller’s starting point to be modestly higher due to their other offence and antecedents.

    Miller sentenced to 6 years and 8 months imprisonment with a 4 year non-parole period. Omar sentenced to 6 years imprisonment with a 3 year and 8 month non-parole period. Both sentences reduced by 25 per cent for the offenders’ pleas of guilty.
  • 27 October 2021 —

    R v Millevoi [2021] NSWDC 578 — drug importation offences — sentence — nature and circumstances — extra-curial punishment — contrition — character — intensive correction order

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    The offender was sentenced following pleas of guilty to 1 count of importing a commercial quantity of a border-controlled substance, and 1 count of trafficking a commercial quantity f a border-controlled substance. Count 1 related to 7.29kg of pure gamma-butyrolactone. Count 2 related to 21.29kg of pure gamma-butyrolactone.  

    Nature and Circumstances: GBL is contained in eyelash remover made in China. Offender had previously operated a legitimate business that imported and sold liquid and gel versions of false eyelash glue remover. Offender legitimately operated a business for 7 years with an honest and reasonable belief in the legality of their trading and without any awareness of the GBL in the products. From 6 February 2019, the offender stumbled into the offending. There is no evidence of customers’ actual illicit use of offender’s products after purchase. The offender did not sell the Liquid or Gel for the reason of it being put to illicit use by others. All of the subject transactions were properly documented and accounted as regular commercial business. The period of offending occurred for around 3 weeks. Offender was legitimate business person unwittingly acting as a gateway for an unknown illicit clientele. Objective seriousness for both counts is at the very low end of the spectrum of offending.  

    Extra-Curial Punishment: Local media described offender’s actions as hiding drugs in eyelash glue removal. Offender’s staff left. Offender was required to sell home, had their bank accounts frozen and technology seized. Publicity exaggerated criminal conduct.  

    Contrition: Offender has since located GBL free product. Offender asked Officer In Charge to collect the first shipment and have it tested. The offender did not trade in it until police gave them clearance to do so. In this way, whilst the offender has not repaired injury caused by offending, they have taken action representative of contrition.  

    Character: The circumstances of offending were promoted by offender’s good character and standing in the community, other than to the extent that they operated a legitimate business in beautician products.  

    Intensive Correction Order: The paramount consideration of community safety and whether full time detention is more likely to address the offender’s reoffending is readily relieved. Sentence by way of ICO meets the importance of general deterrence and sentence designed according to individual justice in the unique circumstances of the offending.  

    Offender sentenced to 2 years and 6 months imprisonment to be served by way of intensive correction order. Offender fined $10,000.
  • 22 October 2021 —

    22 October 2021 — R v Castellarin [2021] NSWDC 571 — child exploitation offence — nature and circumstances — contrition — general deterrence

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    The offender was sentenced following a plea of guilty to 1 count of using a carriage service to access child pornography material contrary to s 474.19(1) of the Commonwealth Criminal Code.

    Nature and Circumstances: Offending was serious and sophisticated. Offender downloaded a large amount of child abuse material comprising 24 videos and 1,183 images over a four hour period. The material involved actual children of a very young age involved in and witnessing sexual activity. Offender used a tor browser both to conceal his conduct from his employer and to make the process of downloading difficult to trace by the authorities. Given the offender’s experience in the IT industry, and their participation in the security committee overseeing the employer’s systems, the offender intentionally embarked on accessing the material.

    Contrition: Notwithstanding that the offender initially denied the offending to please and minimise his conduct to the psychologist, the offender has now shown insight into the impact of their offending on potential victims and the broader impact of child abuse material on the community. Offender has demonstrated some contrition for their offending. Offender gave an account of offending that minimised involvement in offending to a significant degree.

    General Deterrence: There is a significant public interest in protecting children from sexual exploitation and abuse, and offences of this type are increasingly prevalent in the community. Such offending is difficult to detect, particularly given the use of software programs that allow access to the dark web and the anonymity with which such crimes are committed.

    Offender sentenced to 18 months imprisonment, to be released on recognizance release order after 9 months.
  • 15 October 2021 —

    R v Whiteman [2021] NSWDC 557 — child exploitation offences — sentence — nature and circumstances — impact on victim — contrition

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    The offender was sentenced following pleas of guilty to 4 counts of using a carriage service to groom contrary to s 474.27(1) of the Commonwealth Criminal Code, 11 counts of using carriage service to transmit indecent material to a child under 16 years contrary to s 474.27A(1) of the Commonwealth Criminal Code, 2 counts of using a carriage service to harass contrary to s 474.17(1) of the Commonwealth Criminal Code, 1 count of using a carriage service to engage in sexual activity contrary to s 474.25A(1) of the Commonwealth Criminal Code, 2 counts of using a carriage service to offend contrary to s 474.17(1) of the Commonwealth Criminal Code. Offender sentenced for additional state offences. Additional offences taken into account pursuant to s 16AB.  

    Nature and Circumstances: Offender began offending as an adolescent in 2004 offending only ended when offender was arrested in March 2020. There were 22 complainants aged between 11 and 17, with only one over 16. Offender had physical contact with 6 victims. Most images and sexualised communication threads were of known or unknown child victims of offences committed by the offender. Offender exploited, targeted and abused children known to him. Actions were deceptive, exploitative and invasive of a child’s privacy. Offender stored images for their own prurient purposes as a further gross breach of a child’s privacy. Each image stored involved a real child and exploitation of that child would have been compounded each time the image was viewed.  

    Impact on Victim: Many of the children told police how initially they welcomed the approaches by an older and adult man but how uncomfortable and confusing they found it when the approaches toward them turned to sexual demands. Victims felt vulnerable after they realised they had their innocence exploited. Lasting impacts reported included anxiety, shame, negative self-image and feeling that as a young girl their life had been broken. Offender had compromised their capacity to trust others, particularly men.  

    Contrition: While offender has displayed some remorse, building on the practical remorse demonstrated by early acceptance of responsibility, evidence was overall unconvincing. Offending was age specific, planned and calculated. Evidence and letter appeared insincere and self-serving. Offender was obviously regretful for the position they are in now, but insight into what they did and harm caused was limited.  

    Offender sentenced to 16 years imprisonment with a 12 year non-parole period.
  • 11 October 2021 —

    R v Uweinat [2021] NSWSC 1256 — terrorism offences — sentence — contrition — age — rehabilitation

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    The offender was sentenced following pleas of guilty to 1 count of being a member of an organisation, IS, knowing that the organisation was a terrorist organisation contrary to s 102.3(1) of the Commonwealth Criminal Code and 1 count of intentionally advocating the doing of a terrorist act or the commission of a terrorism offence, being reckless as to whether another person will engage in a terrorist act or commit a terrorism offence contrary to s 80.2C(1) of the Commonwealth Criminal Code.  

    Nature and Circumstances: Offender was for a period of 5 months, a member of IS. Offender’s membership of IS was in the nature of an informal arrangement. Offender did not occupy any position of authority or leadership within IS. Offender’s assertion that he was a moderate Muslim is not able to be accepted and is entirely at odds with membership of IS. Offender advocated the commission of terrorist acts over a period of 5 months. Evidence and references to Australian landmarks is at odds with offender’s assertion that they did not support terrorist acts. Conduct is rendered objectively more serious by admission that they engaged in it in the knowledge that they were indoctrinating those younger than them with extremist beliefs.  

    Contrition: Offender gave letter to the courts. Offender’s expressions of regret to Muslim Prison Chaplain were a consistent message. Sworn evidence given be offender’s mother and stepfather were of similar effect. Offender is genuinely contrite for offending.  

    Age: Offender was aged 21 years of age at the time of offending. Considerations of general deterrence and retribution cannot be completely ignored in the present case. There remains a significant public interest in deterring anti-social conduct. The emphasis on rehabilitation when sentencing a young offender may be moderated when that offender conducts themselves in the way in which an adult might. Retribution cannot give way entirely or perhaps even substantially to the interests of rehabilitation.  

    Rehabilitation: Psychologist’s view is that offender’s successful rehabilitation is dependant upon not resuming associations with persons of extremist beliefs. In May 2020, 6 months following arrest, offender was found with three letters. The offender had used a name which they had previously used to identify themselves as the author of two martyrdom images. One of the inmates who sent letters to offender was a known member of IS. Prospects of rehabilitation are dependent on not choosing to associate with such persons. Circumstances cause some note of caution in what is an otherwise generally favourable assessment of rehabilitation.  

    Offender sentenced to 3 years and 11 months imprisonment with a 2 year and 11 month non-parole period.
  • 11 October 2021 —

    R v El Matari [2021] NSWSC 1260 — terrorism offences — sentence — nature and circumstances — contrition — age — rehabilitation — specific deterrence

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    The offender was sentenced following pleas of guilty to 1 count of doing an act in preparation for, or planning of, terrorist acts contrary to s 101.6(1) of the Commonwealth Criminal Code, and 1 count of preparing to engage in the commission of an offence against s 119.1 of the Commonwealth Criminal Code. Offender sentenced for additional s 16BA offences.   Nature and Circumstance: Offender was motivated by extremist ideals to go to Afghanistan to join the Mujahadin in Khorasan province and to engage in some form of hostile activity. Offending took place over a period of 9 months and continued after the offender was arrested. Offender made enquiries about obtaining explosive material and firearms and purchasing military clothing. Offender identified specific targets of attack including Australian public institutions where a large number of people could be harmed by any such attack. Offending falls at or just below the mid-range of offences of this kind.  

    Contrition: Offender pleaded guilty and tendered a letter to the court, and when interviewed by psychologist, expressed regret. Offender did not give sworn evidence in support of those statements. Statements are to be given some weight.  

    Age: Offender was between 19 and 20 when they committed the offence. At the age of 18 the offender had been arrested in Lebanon for attempting to join and fight with IS. Extent of offender’s immaturity is tempered by the fact that they travelled to Lebanon and were caught and punished. By the time the offender returned to Australia it would be hard to put much weight, if any, on the offender’s lack of maturity. The offender ought to have learned their lesson by then.  

    Rehabilitation: Offender has denied any current interest in engaging in acts of violent extremism however they have not been exposed to any intervention as yet. Offender has had some beneficial interaction with the Muslim prison Chaplain but this has been limited. Prospects of rehabilitation at this stage can only be regarded as slight though this may improve. Offender’s PTSD and complex mental health symptomatology will make time in custody more onerous.  

    Specific Deterrence: Offender was attracted to and wished to participate in violence driven by extremist IS ideology. Protection of the community includes incapacitation e.g. preventing the offender from carrying out the terrorist act which was their ultimate intention.  

    Offender sentenced to 7 years 4 months imprisonment with a 5 year and 6 month non-parole period.
  • 11 October 2021 —

    R v Amin [2021] NSWSC 1267 — terrorism offences — sentence — nature and circumstances — guilty plea — rehabilitation

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    The offender was sentenced following pleas of guilty for 1 count of doing acts in preparation for, or planning, a terrorist act or acts contrary to s 101.6(1) of the Commonwealth Criminal Code and 1 count of attempting to intentionally export goods, being Tier 1 goods, comprising material that advocated the doing of a terrorist act, being reckless as to the fact that the goods were Tier 1 goods contrary to s 233BAA(5) of the Customs Act 1901 (Cth) and the Commonwealth Criminal Code.  

    Nature and Circumstances: Offending took place over 8.5 months and consisted of conversations, messages and discussions where offender explored ways of travelling to Bangladesh to overthrow the government there. Finally, the offender attempted to leave Australia and fly to Bangladesh. Offender chose to explore the path of violence but had not engaged with it in any meaningful way prior to attempting to travel to Bangladesh. The totality of the acts do not disclose any firm, fixed or developed plans for engaging in terrorism activities in Bangladesh. Customs Act offence involves taking publications overseas which is towards bottom end of offences.  

    Guilty Plea: Formal plea was not entered until very late in the proceedings and whilst there was utilitarian value in that plea which might have been greater with an earlier plea, from an early time the offender was subjectively willing to facilitate the course of justice by offers to plea guilty to one offence. Appropriate discount for plea of guilty is 20%.  

    Rehabilitation: Offender rejected the proposition that they still held a grievance about how Muslims were treated in Australia, but agreed that the treatment of Muslims was a continuing issue in the world. Offender said they would prefer to live in an Islamic country governed by Sharia law than to live in Australia. Whilst offender has not had the opportunity to engage in any interventions, they have renounced or else are well on the way to renouncing extremist IS ideology.  

    Offender sentenced to 5 years and 4 months imprisonment with a 4 year non-parole period.
  • 8 October 2021 —

    Lam v R (Cth); Lay v R (Cth); To v R (Cth) [2021] NSWCCA 242 — drug importation offences — appeal against sentence — guilty plea — Xiao error — parity

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    Lam was sentenced following pleas of guilty to 2 counts of possessing a commercial quantity of unlawfully imported border controlled drugs contrary to ss 307.5(1) and 11.(1) of the Commonwealth Criminal Code. Offences related to 233.070kg of pure methamphetamine, and 174.484kg of pure heroin. Original sentence imposed 18 years imprisonment with a 12 year non-parole period. Offender appealed on the basis of Xiao error.  

    Lay was sentenced following pleas of guilty to 1 count of attempting to possess commercial quantity of border controlled drugs, methamphetamine and heroin, contrary to ss 307.5(1) and 11.1 of the Commonwealth Criminal Code, and 1 count of trafficking a commercial quantity of a border controlled drug, methamphetamine, contrary to s 302.2(1) of the Commonwealth Criminal Code. Original sentence imposed was 17 years and 6 months imprisonment with an 11 year and 6 month non-parole period. Offender appealed on the basis of Xiao error and parity.  

    To was sentenced following pleas of guilty to 1 count of aiding and abetting TTP to traffick a commercial quantity of a border controlled drug contrary to ss 11.1(1), 11.2(1) and 302.2(1) of the Commonwealth Criminal Code. Offender sentenced for additional state offences. Offender sentenced to 14 years and 6 months imprisonment with an 8 year non-parole period. Offender appealed on the basis of Xiao error.  

    Guilty Plea: Sentences were handed down prior to the decision in Xiao v R. Although each offender received a discount on sentence to acknowledge the pleas of guilty, they were expressed as an acknowledgement of the willingness of each offender to facilitate the course of justice. Lam is entitled to discount on sentence of 25% in recognition of the utilitarian value of the plea of guilty. Lay is entitled to a 25% discount.  

    Parity: Tang and Lee (co-offenders) had a greater organizational role than Lam, but Lam’s role was critical to the success of the enterprise and criminality was very high. The differences in the offences charged against Lay and To have some relevance to the differences in outcome, as do differences in the respective subjective cases. The difference in sentences was appropriately reflected by the relativities of sentences imposed.  

    The sentence to be imposed to reflect the great gravity of the offending conduct and which takes into account the particular subject case is not less severe than that imposed at first instance. Offenders are not to be resentenced.  

    Leave to appeal granted to all offenders. Appeals dismissed.
  • 8 October 2021 —

    Awraham v The Queen (Cth) [2021] NSWCCA 241 — drug importation offence — appeal against sentence — nature and circumstances — cumulative and concurrent sentences — antecedents

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    The offender was sentenced following pleas of guilty to 1 count of attempting to possess a commercial quantity of border controlled drugs contrary to s 11.1 and 307.5(1) of the Commonwealth Criminal Code. Offence related to 2152.27g of pure cocaine. Original sentence imposed 9 years imprisonment with a 6 year and 6 month non-parole period. Offender sentenced for additional state offences. Offender appealed on the basis that sentence imposed for the Commonwealth offence was manifestly excessive.  

    Nature and Circumstances: Offender was closely involved in an attempt to import 2.152kg of pure cocaine. Role was at least that of a courier and above that of a mere recruit. Offender was aware of when and where the consignment would be delivered. Offender did not take the risk of collecting the consignment. Offender knew precisely where the drug should have been located. Removal of inert drug substitute from packaging clearly points to a role above that of a mere recruit.  

    Cumulative and Concurrent Sentences: Sentence imposed specifically on Commonwealth offence was 7 years and 6 months imprisonment with a 5 year and 15 day non-parole period. Hamill J held that the sentence was manifestly excessive. Hamill J noted that 18-months accumulation of the sentence for the federal sentence on the state sentences resulted in a total sentence disproportionate to the totality of the criminality and that the adjustment made to individual sentences was mostly lost as a result of the accumulation.  

    Antecedents: Wilson J stated that the subjective case was untested and the offender was not prepared to give evidence or be cross-examined on their account. Attendance at drug rehabilitation meetings and with a psychologist were positive but hardly the proof of completed rehabilitation that the offender submitted it was. While Wilson J noted that the evidence tendered on offender’s behalf was untested (psychologist’s report and letter from offender to judge) Hamill J stated that there were other mitigating features and positive aspects of the offender’s case including having a clean record, youth, strong family support and completion of a TAFE course.  

    Wilson J (with Davies J agreeing) granted leave to appeal, and dismissed the appeal.  

    Hamill J granted leave to appeal, allowed the appeal, quashed the sentence and imposed a sentence of 6 years and 9 months imprisonment with a non-parole period of 4 years and 3 months.
  • 5 October 2021 —

    DPP (Cth) v Kiraci [2021] VCC 1427 — drug importation offence — sentence — nature and circumstances — mental condition

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    The offender was sentenced following a plea of guilty to 1 count of attempting to possess a commercial quantity of an unlawfully imported border controlled drug contrary to ss 11.1(1) and 307.5(1) of the Commonwealth Criminal Code. Offence related to 731g of pure MDMA.  

    Nature and Circumstances: Offender was relatively young with no criminal history and continuous work history, albeit of of low intellectual functioning. Offender was not importer of the package nor the ultimate receiver. Offender did not know what was being sent was a border-controlled drug though offender was reckless as to this fact. Offending is confined to placing two phone calls to Australia Post. Offending was far from sophisticated. Offender gave own name and details to Australia Post.  

    Mental Condition: Offender, by virtue of intellectual limitations and depression and substance abuse was vulnerable to exploitation and was taken advantage of by ‘Megagym’ who took steps to insulate themselves from detection. Moral culpability is reduced. There is a clear nexus between intellectual limitations and offending.  

    Offender sentenced to 4 years imprisonment with a 2 year and 8 month non-parole period.
  • 24 September 2021 —

    Garcia-Godos v The Queen [2021] NSWCCA 229 — drug importation offences — appeal against sentence — guilty plea — Xiao error — parity — nature and circumstances

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    The offender was sentenced following pleas of guilty to 1 count of importing a commercial quantity of a border-controlled drug and 1 count of conspiring with others to deal with money in excess of $100,000 contrary to ss 11.5(1) and 400.4(1). Drug importation offence related to 34kg of pure cocaine. Additional offences taken into account pursuant to s 16BA. The offender appealed on the grounds that the sentencing judge failed to take into account the utilitarian value of the plea, the sentencing process miscarried as the sentencing judge asked for the views of the Crown as to the bounds of available sentences and erred by applying a principle that in cases of drug importation subjective factors must play a lesser role.  

    Guilty Plea: Sentencing judgment was handed down prior to decision in Xiao. Offender was not given a discount for utilitarian value of guilty plea. Simpson AJA doubted that misstatement of principle having no impact on the exercise of the sentencing discretion should result in the re-examination of that discretion by the Court. Absent the Crown’s concession that the Court was required to proceed to re-exercise the sentencing discretion, Simpson AJA would have been inclined to reject ground 1 of the proposed appeal.  

    Parity: Offender submitted that principles in Barbaro prevented the Crown from making any submission on parity which indicated that a particular sentence would infringe the principle of parity. The sentencing judge wanted guidance from the Crown as to the available range or appropriateness of a particular sentence. The Crown’s refusal to answer the question directly demonstrated the Crown’s awareness of the Barbaro principles and a determination not to breach them. The Crown’s negative answer as to whether a sentence was within range was part of the Crown’s submissions on parity. The Crown is both entitled and obliged to draw the sentencing judge’s attention to comparable cases.  

    Nature and Circumstances: Sentencing judge quoted Karan stating that subjective factors must play a lesser role. It was common ground that the word ‘must ‘was an error as in Karan it was actually said that such factors play a lesser role.  

    Extension of time granted. Leave to appeal granted. Appeal dismissed.
  • 23 September 2021 —

    R v O’Brien [2021] NSWDC 504 — drug importation offences — sentence — nature and circumstances — cooperation — antecedents — mental condition — rehabilitation

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    The offender was sentenced following a plea of guilty to 1 count of importing a marketable quantity of a border controlled drug contrary to s 307.21(1) of the Commonwealth Criminal Code. Offence related to 446.61 grams of pure gamma-butrolactone. Offender sentenced for additional state offences.   Nature and Circumstances: GBL was purchased online using personal details and credit card for less than $50. Offender engaged in unsophisticated offending of an amount less than half the commercial quantity of GBL. Offender was not participating in criminal syndicate but was acting of own accord and any financial benefit they were to receive by sharing the product with friends was likely to be minimal. Offending was at the lowest end of the range.   Cooperation: Offender submitted they assisted law enforcement agencies in the investigation of the offence by making admissions. Offender told police they purchased the consignment for use as paint remover. Degree of cooperation is not to be given great weight.   Antecedents: Offender’s formative years have been marked by exposure to domestic violence and child sexual abuse. Notwithstanding working successfully as a nurse and in sales, those are matters which are relevant to diminishing culpable offending. Offender’s criminal history is reflective of history of drug and alcohol abuse. This history disentitles the offender to leniency in sentencing, although leniency has previously been a feature with numerous section 9 bonds being imposed to be of good behaviour.   Mental Condition: Drug use was maladaptive coping mechanism. However, offender’s mental health was not accepted to be causative of current offending. Offending was result of ongoing drug abuse and association with other persons involved in the drug milieu.   Rehabilitation: Offender has engaged positively with treatment regime since January 2021 and has had nil positive drug detection results. This is compelling evidence that they have advanced their rehabilitation, have insight and self-awareness into their offending and if continued, will have reasonable prospects of rehabilitation. The salutary effect of arrest and imprisonment warrants a more positive assessment of risk of reoffending than that in the SAR.   Offender sentenced to 18 month community corrections order.
  • 16 September 2021 —

    R v Hurt (No 2) [2021] ACTSC 241 — child exploitation offences — sentence — nature and circumstances — minimum sentences — rehabilitation

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    The offender was sentenced following pleas of guilty to 1 count of transmission of child abuse material contrary to s 474.22(1)(a)(ii) of the Commonwealth Criminal Code, 1 count of access of child abuse material contrary to s 474.22(1)(a)(i) of the Commonwealth Criminal Code and 1 count of possession of child abuse material contrary to s 474.22A(1) of the Commonwealth Criminal Code.  

    Nature and Circumstances: Offences were committed during the operation of a good behaviour order for previous child exploitation offending. Number of images possessed is significant. Material overall discloses more than 100 separate children. All charges are within mid-range of objective seriousness.  

    Minimum Sentences: Court not satisfied that the approach in Bahar is correct but is obliged to follow it. The words used by the legislature do not make it express that the maximum and minimum sentences reflect a range within which proportionate sentences must be set. The minimum may be a floor on the sentence to be imposed, but not a floor only applicable in a case warranting the most lenient sentence and requiring other sentences to fit proportionately. Notwithstanding the mandatory minimum sentence provisions, s 16A is not made expressly subject to the minimums in ss 16AAA and 16AAB. The unqualified obligation remains to impose a sentence or make an order that is of a severity appropriate in all the circumstances of the case. The approach adopted in Bahar is that it is inherent in the minimum penalty that it identifies the sentence to be imposed in the most lenient case, rather than an arbitrarily fixed minimum to be applied after the determination of what would otherwise be the most appropriate sentence. The discount provisions in s 16AAC(2)-(3) are effectively neutral. There is value in theoretical coherence of a sentencing regime. The language of the explanatory memorandum makes it clear that the intention was to increase sentences however it is not clear that this was to be done by a proportionate increase in all sentences as opposed to by eliminating the possibility of sentences below the threshold. The principle of legality tends in favour of the interpretation suggested by the offender. Increased penalties only apply to offence insofar as it involved the 25 additional photographs.  

    Rehabilitation: Offender displayed lack of motivation or capacity to pursue rehabilitation once released, notwithstanding that they were subject to supervision. Offender returned to committing offences within a few months of being released from custody. The earlier sentence of imprisonment was not sufficient to deter further significant offending. Prospects of rehabilitation remain guarded.    

    Offender sentenced to 4 years and 1 month imprisonment with a 2 year and 1 month non-parole period.
  • 15 September 2021 —

    R v Temssah [2021] VCC 1353 — terrorism offence — sentence — nature and circumstances — rehabilitation

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    The offender was sentenced following a plea of guilty to 1 count of engaging in conduct in preparation for an incursion into a foreign country for the purpose of engaging in hostile activity contrary to s 119.2(1) of the Commonwealth Criminal Code.  

    Nature and Circumstances: Criminality occurred for period of 17 days. Preparatory acts were unsophisticated but purposeful. Conduct persisted even though offender had ample opportunity to deist. There was a degree of planning evident in the acts undertaken. The acts engaged in were all functional in nature and not in and of themselves violent or threatening. It is the intention behind inherently unremarkable acts that must be assessed. There is gravity about the offender’s intention. It is evident from offenders sentiments that they sincerely wished to engage in hostile activity and to die as a martyr if necessary. Entirety of conduct was engaged in whilst in direct conduct with an undercover operative purporting to be an IS sympathiser.  

    Rehabilitation: Offender publicly and under oath renounced belief in extremist ideology that motivated offending. Offender’s rejection of extremism was given in the course of testimony where offender clearly and falsely minimised the nature of intentions in going to Kashmir. Whilst possibility that renouncement was disingenuous cannot be entirely excluded, on balance, it was accepted as genuine. Some caution must be expressed simply because offender appears to have become radicalised within a relatively short time. Speed of conversion to become a person prepared to give life in service of a religious ideology is concerning. Prospects of rehabilitation are reasonable.  

    Offender sentenced to 4 years and 9 months imprisonment with a 3 year and 9 month non-parole period.
  • 14 September 2021 —

    DPP v Merton (A pseudonym) [2021] VCC 1324 — carriage service offence — sentence — victim of offence — mental condition — antecedents — guilty plea — rehabilitation

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    The offender was sentenced following a plea of guilty to 1 count of using a carriage service to harass contrary to s 474.17(1) of the Commonwealth Criminal Code. Offender was sentenced to additional state offences.

    Victim of Offence: Victim’s statement detailed the profound effect the offending had on themselves and their children. The offender’s actions not only had a physical impact on the victim but ongoing emotional and psychological damage. Consideration of impact on the victims cannot swamp the sentencing process.

    Mental Condition: Offender met the criteria for a severe personality disorder with borderline patterns, persistent depressive disorder and stimulant use disorder. Offender’s moral culpability was reduced by reason of their borderline personality disorder substantially impacting their ability to think through and reason. Verdins limbs 1, 3 and 5 applied. The extent of reduction in moral culpability was limited somewhat by the impact drug use had on the offender’s behaviour. Offender’s personality impairment, depressive disorder and ongoing pandemic restrictions would make imprisonment more burdensome.

    Antecedents: Offender had concerning and substantial prior criminal history from a young age including extensive interstate priors and similar offending. Offender’s unstable and disadvantaged childhood was taken into account to reduce their moral culpability. Offender endured a childhood of emotional neglect, exposure to violence, physical abuse and sexual abuse. Offender had an unstable education and was drawn to alcohol abuse by age 13 and cannabis use by age 14. Degree of personal culpability to be attached to offending must appropriately be moderated.

    Guilty Plea: Plea was entered at the earliest reasonable opportunity and is of substantial utilitarian value as the offender saved the time and resources that would otherwise have been expended on contested proceedings. Avoidance of multiple trials carried significant weight in relation to current pandemic restrictions and sparing witnesses the inconvenience and undoubted stress involved in giving evidence at trial. Plea was consistent with offender’s self-awareness and genuine remorse for their offending.

    Rehabilitation: Offender’s criminal history has seen the offender sentenced to periods of imprisonment on 11 occasions since 2002. Present offending was committed whilst on parole and in breach of a Community Corrections Order. Offending suggests that the offender has a limited capacity to appropriately regulate their behaviour, especially when under the influence of drugs. Offender posed a high risk of re-offending and has poor prospects of rehabilitation, though successful engagement with treatment in the future is possible.

    Offender sentenced to 6 months imprisonment for carriage service offence. Total sentence 4 years and 4 months imprisonment with a 3 year and 3 month non-parole period.
  • 10 September 2021 —

    DPP (Cth) v Roberts [2021] NSWDC 472 — dishonesty offences — sentence — nature and circumstances — antecedents — mental condition — contrition — family and dependents

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    The offender was sentencing following a plea of guilty to dishonestly obtaining a financial advantage from the Commonwealth contrary to s 134.2(1) of the Commonwealth Criminal Code.  

    Nature and Circumstances: There is no suggestion of any assumed identity. Offending related to $125,432.49 in overpayments of the carer’s pension from the Department of Social Security over a period of nearly six- and one-half years. The offender deliberately and consistently over a number of years misstated their income to the relevant authority. The offending conduct only stopped when there was a data match. The offender did not stop the offending conduct of their own volition. The offending is marginally above mid-range. To be towards the upper end in the range of seriousness it would have to involve greater sums of money and matters such as false identities.  

    Antecedents: Offender is indigenous and grew up with adoptive parents. Offender’s adoptive mother was physically abusive. The factors of the offender’s upbringing go to enliven the Bugmy factors, reducing the moral culpability of the offending. The Bugmy factors should not be given excessive weight or overwhelm the seriousness of the offending.  

    Mental Condition: Offender has often gambled away pay. Generally addiction to either gambling or drugs will not mitigate penalty.  

    Contrition: Offender has not repaid full amount. Although offender is entitled to consideration for contrition the weight given to that is not as great as it would be if the whole of the amount defrauded had been repaid.  

    Family and Dependents: Offender is a carer for their sister who suffers from significant number of health issues. Offender attends to all domestic duties and assists their sister with daily living. There will be some adverse effect on offender’s sister if the offender goes to custody. The issue is whether the needs of the offender’s sister reach the very high standard of exceptional. Although it goes close to the hardship that the offender’s sister would suffer it does not meet the standard of exceptional that is required by the authorities. The issue of hardship goes to the issue of the ratio between actual time in custody and total sentence.  

    Offender sentenced to 3 years imprisonment to be released on recognisance after 10 months.
  • 9 September 2021 —

    R v Jacques [2021] SASCA 94 — drug trafficking offence — money laundering offences — appeal against sentence — manifest inadequacy — nature and circumstances — guilty plea — cumulative and concurrent sentences

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    The offender was sentenced following pleas of guilty to 1 count of trafficking in a controlling drug contrary to s 302.4(1) of the Commonwealth Criminal Code, 1 count of dealing with money valued at $100,000 or more, where there is a risk that it will become an instrument of crime, contrary to s 400.4(2) of the Commonwealth Criminal Code and 1 count of dealing with the proceeds of indictable crime valued at $10,000 or more contrary to s 400.6(1) of the Commonwealth Criminal Code. Offending involved 3.419 kilograms of pure methylamphetamine. Original sentence imposed 3 years imprisonment and a 9 month non-parole period. Crown appealed on the basis that the head sentence and non-parole period were manifestly inadequate.

    Nature and Circumstances: Offender operated their own trafficking enterprise and was not answerable to anyone in a hierarchy of a drug trafficking business. Though a third party supplied the offender with the drugs and a customer base, for all intents and purposes they ran their own business. Offending was part of an ongoing commercial enterprise which went beyond funding the offender’s addiction. While there was scope to impose a relatively lenient non-parole period, the circumstances of offending and offender’s previous criminal history required a sentence that continued to place weight on personal deterrence and the seriousness of offending. Non-parole period of just below 25% was not justifiable.

    Guilty Plea: Sentencing judge gave extremely high discounts of 33% and 35% for money laundering offences despite the offender’s pleas of guilty being considerably delayed. Offender was arrested in August 2018 and entered not guilty pleas in September 2019 before pleading guilty on 30 September 2020.

    Cumulative and Concurrent Sentences: Original sentence for money laundering offences were to be served wholly concurrently. While both offences related to the offender’s involvement in drug trafficking, this was a relatively high level of abstraction. They were separate and distinct instances of offending warranting cumulative sentences.

    Leave to appeal granted. Appeal allowed. Offender resentenced to 6 years and 9 months imprisonment with a 4 year non-parole period. 15% discount granted for the offender’s pleas of guilty.
  • 8 September 2021 —

    Lai v The Queen [2021] NSWCCA 217 — drug importation offence — appeal against sentence — parity

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    The offender was sentenced following a plea of guilty to 1 count of attempting to possess a commercial quantity of an unlawfully imported border-controlled drug contrary to ss 11.1(1) and 307.5(1) of the Commonwealth Criminal Code. Offending involved 160.7kg of pure methamphetamine. Original sentence imposed 12 years imprisonment with an 8 year non-parole period. Offender appealed on the basis that there was a lack of parity between the offender’s sentence and that imposed on two co-offenders.

    Parity: An offender seeking leave to appeal asserting a parity error faces a considerable obstacle where, as here, all of the offenders were sentenced by same judge. This becomes all the more so when it is evident that the sentencing judge was specifically mindful of the need to apply the parity principle. Though the offending had been performed over a short period of time and was, in an overall sense, less than the co-offenders, the offender’s role in the offending was not less than significant. It was the offender’s role to apply their knowledge and expertise to the task of opening each lathe so that the packages could be removed. While the role did not involve any managerial responsibility or exercise of authority, its importance must not be understated. Offender’s role and expertise were essential to a well organised venture of international drug trafficking. Offender had no justifiable cause for complaint stemming from being isolated from their family as they had come to Australia specifically for the purposes of engaging in the offending. Sentencing judge had correctly taken into account the additional importation offence of co-offender Ngan. The only additional criminality in which Ngan engaged in respect of the importation was liaising with the freight forwarder after the consignment arrived. Any increment to be applied was to be assessed in that context.

    Leave to appeal granted. Appeal dismissed.
  • 7 September 2021 —

    Jansen v The Queen [2021] WASCA 160 — fraud offences — appeal against sentence — nature and circumstances — manifest excess

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    Offender was sentenced following pleas of guilty to 2 counts of under-declaring and failing to declare employment income with the intention of dishonestly obtaining a gain from a Commonwealth entity contrary to s 135.1(1) of the Commonwealth Criminal Code. Original sentence imposed 2 years and 6 months imprisonment to be released on recognizance after 22 months. Offender appealed on the basis that the pre-release period of 22 months was manifestly excessive considering the circumstances of the offending, the offender’s personal circumstances and sentencing standards.

    Nature and Circumstances: The fixed pre-release period was manifestly excessive. The offending was serious, but not as serious as other examples of the same type of offence. Offending did not involve the use of false identities or aliases and did not result in the gain of a very large sum of money. Offender’s plea of guilty was at the first reasonably opportunity. Offender was contrite, had cooperated with authorities and made some reparation to the Commonwealth. The period of 22 months was inconsistent with terms imposed for similar, if not more serious, offending. Pre-release period failed to reflect mitigating factors in the case, including offender’s good prospects of rehabilitation.

    Leave to appeal granted. Appeal allowed. Original sentence varied by imposing a 16 month recognizance release order.
  • 7 September 2021 —

    R v Halis & Ors [2021] VCC 1277 — sentence — terrorism offence — nature and circumstances — guilty plea — rehabilitation — family and dependents

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    The offenders were sentenced following pleas of guilty to 1 count of conspiring to do acts in preparation for, or planning, a terrorist act contrary to ss 11.5(1) and 101.6(1) of the Commonwealth Criminal Code.

    Nature and Circumstances: The impact of inducement from undercover police officers on the offenders was significant and reduced their culpability. Offenders had not advanced very much at all towards carrying out the contemplated terrorist act.  Inducement constitutes an additional, unusual sentencing consideration that qualifies the objective gravity of the offending and indicates leniency. Although the offenders’ adherence to violent jihad was longstanding, there was a real likelihood that, but for the inducement, the offenders would not have committed the offence. The undercover operatives’ engagement with the offenders was over many months. While the operatives did not coerce or instigate the offending, their encouragement and contribution to the offenders’ agreement to attempt to acquire a gun was substantial. To find that the agreement was a consequence of the Bourke St incident was an oversimplification of the offending. The operatives’ interactions generated some of the offenders’ interest in violent jihad and enthusiasm for a potential terrorist act. The offending was serious but by no means the most serious example of the offence as their preparatory conduct was relatively short-lived and limited to obtaining a firearm and training for at least some months to learn how to use that firearm. Offenders embraced an opportunity to acquire a firearm in order to learn how to use it in preparation for, or planning, a terrorist act. That sort of conduct is calculated to sow fear and terror in our community.

    Guilty Plea: Offenders’ plea of guilty substantially reduced the sentences imposed as it was not a common occurrence among offenders of this kind, facilitated the course of justice and carried significant utilitarian value of avoiding the expenses of a criminal trial and assisting the community during COVID-19. Although the pleas were entered more than two years after the time of charge, they were made at a reasonably practicable time after relevant documents and evidence were disclosed.

    Rehabilitation: It is not unreasonable to expect of those who have held such views, and now claim no longer to adhere to that ideology, to discharge a persuasive burden. Some weight is attached to what amounts to public declaration of rejection of hateful ideology. The weight that can be attached is limited as the declarations and rejections remain untested. Offenders still had guarded reasonable prospects for rehabilitation due to their plea of guilty, public statements disavowing violence to the court, family and friends, doubts expressed during the conspiracy, voluntarily abortion of the conspiracy before police intervention, lack of pledged allegiance to a known terrorist organisation and high level of family support. Offenders’ reasonable prospects carried moderate weight as their conduct was not the most serious example of this type of offence.

    Family and Dependents: Ertunc Eriklioglu would face some distress from serving their imprisonment with the knowledge that their wife would raise their two daughters on her own. The effect of imprisonment on the offender’s family could not be taken into account.

    Offenders sentenced to 10 years imprisonment with a 7 year and 6 month non-parole period.
  • 3 September 2021 —

    Mourtada v The Queen [2021] NSWCCA 211 — tobacco importation offences — appeal against sentence — intensive correction order — parity

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    The offender was sentenced to 2 counts of importing tobacco products on which excise and GST would not be paid contrary to the Customs Act 1901 (Cth). The original sentence on 26 August 2020 imposed 19 months and 3 weeks imprisonment for the first offence and 14 months and 3 weeks imprisonment for the second offence, to be released on a recognizance release order after 14 months and 3 weeks. The original sentence imposed failed to conform with s 19AC requirements. The sentencing judge set both sentences aside and resentenced the offender in conformity with s 19AC to an aggregate sentence of 21 months and 3 weeks commencing on 26 August 2020, to be released on recognizance release order after 15 months. The offender appealed on grounds that the sentencing judge erred in failing to take into consideration s 66 of the Crimes (Sentencing Procedure) Act 1999 when deciding whether to make an intensive corrections order, that the sentencing judge erred in failing to order that the sentence to be served by way of intensive corrections order and that the offender had a legitimate sense of grievance regarding the sentence imposed in comparison with that of a co-offender.
    Intensive Correction Order: Section 20AB(1AA)(a)(ix) of the Crimes Act 1914 (Cth) picks up s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) which provides the power to make an intensive correction order. The engagement of s 7 is preconditioned by a sentence of imprisonment being imposed. Absent such a sentence, a state court has no power to make an intensive correction order. In picking up the power under state law to impose an ICO, s 20AB also picks up procedural steps governing the operation of the State provision. Sentencing judge was required to apply s 66 Crimes (Sentencing Procedure) Act 1999 (NSW). The sentencing court was not required to favour an ICO over full-time custody but was required to have specific regard to community protection and to bear in mind that short sentences were not necessarily effective as a means of deterring further offending. The sentencing judge did not err in having regard to specific deterrence in assessing the particular purpose of community protection. There is no basis in s 66 to disregard other sentencing principles, including the need for general deterrence. If some period of full-time custody was warranted, there was no room for the imposition of an ICO.

    Parity: Offender’s aggregate sentence in relation to two offences was difficult to compare to the sentences imposed on the co-offenders. No basis was identified for interfering with the sentencing judge’s evaluative judgments as to the respective levels of culpability and personal circumstances of each co-offender.

    Leave to appeal on grounds relating to intensive corrections order allowed. Leave to appeal on the ground of parity refused. Appeal dismissed.
  • 2 September 2021 —

    CDPP v Hutchinson [2021] VCC 1267 — child exploitation offences — sentence — nature and circumstances — COVID-19 — mental condition — physical condition — rehabilitation — family and dependents

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    The offender was sentenced following pleas of guilty to 2 counts of using a carriage service to access child abuse material contrary to the Commonwealth Criminal Code and 1 count of possessing child abuse material obtained or accessed using a carriage service contrary to the Commonwealth Criminal Code.

    Nature and Circumstances: The number of images, nature of the images and duration of the offending were relevant in finding the offending to be very serious. Offending took place over a period of more than seven and a half years. Offending involved a total of 317,0003 files across four devices, which included over 300,000 images, 2,000 videos and 28 documents. Most of the images and videos were classified as category 1 using the ANVIL classification scheme. The comparatively smaller number of category 2 and 3 images and videos did not obscure the fact that the material in the higher ANVIL categories were themselves disturbingly high.

    COVID-19: Plea of guilty carried greater weight because of more onerous conditions of custody as a result of the COVID-19 pandemic. Sentence further reduced because more onerous prison conditions were likely to exist because of COVID-19.

    Mental Condition: Offender suffers from a major depressive disorder. Consideration was not detracted by the fact that the offender’s depression was partly attributable to distress caused by having their conduct exposed, their family impacted, having criminal charges brought against them and the likelihood of incarceration. Verdins limbs 5 and 6 applied in relation to offender’s depression. Involvement with deviant online material was sufficiently intense to meet DSM5 criteria for an unspecified paraphilic disorder.

    Physical Condition: Offender also has a long-standing diagnosis of ulcerative colitis and related conditions of anterior iritis and uveitis. Offender’s condition will continue to impact on their quality of life and may be exacerbated by the stress of incarceration. Offender’s depressive order and ulcerative colitis would make imprisonment more onerous for them.

    Rehabilitation: Offender made significant progress from engaging in initial treatment and posed a moderate-low risk of recidivism to sexual offending. Offender’s commitment to treatment, continued support of their wife and parents and good employment history improved prospects to reintegrate into the community upon release.

    Family and Dependents: Offender’s family would suffer hardship, particularly as a result of the support the offender provided to their autistic daughter, but this is a consequence of the offender’s conduct. Offender’s concern for their daughter stood in stark contrast to their absence of concern for the victims, many of the same age as their daughters, who were exploited for the child abuse material.

    Offender sentenced to 5 years imprisonment with a 3 year non-parole period.
  • 25 August 2021 —

    Azari v The Queen; Al-Talebi v The Queen [2021] NSWCCA 199 — terrorism offences — appeal against sentence — s 16BA — parity

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    Al-Talebi was sentenced following conviction at trial to 2 counts of jointly attempting to provide support or resources to a terrorist organisation contrary to s 102.7(1), 11.1(1) and 11.2A(1) of the Commonwealth Criminal Code and 1 count of jointly attempting to make funds available to a terrorist organisation contrary to. Azari was sentenced following a plea of guilty to attempting to make funds available to Islamic State contrary to s 11.1(1) and 102.6(1) of the Commonwealth Criminal Code and sentenced following conviction at trial to 2 counts of attempting to make funds available to Islamic State contrary to s 11.1(1) and 102.6(1) of the Commonwealth Criminal Code, and 1 count of participating in a telephone conversation contrary to s 101.6(1). Original sentence imposed on Al-Talebi 12 years imprisonment with a 9 year non-parole period and on Azari 18 years imprisonment with a 13 year and 6 month non-parole period. Al-Talebi appealed on the grounds of disparity and manifest excess. Azari appealed on the grounds that there was error in taking into account 16BA offences, manifest excess and disparity.  

    Section 16BA: No sentence is imposed for an offence listed on a s 16BA schedule. Specific deterrence and punishment can only be reflected in the sentence imposed for the offence of which an offender has been convicted and not for an offence where guilt has been admitted but for which the offender has not been committed. The sentence for the funding offence had already built into it an unquantified allowance for any uplift associated with the s 16BA offences. There is no indication that the s 16BA offences were taken into account again or that there was any aspect of double-counting in the approach taken by the sentencing judge.  

    Parity: There were substantial similarities between the roles played by Azari and Al-Talebi concerning the provision of funding. Both offenders were of prior good character. Neither was found to be remorseful or contrite. Generally, although not necessarily, the inclusion of offences on a s 16BA schedule will result in a higher overall offence. This makes comparison for parity purposes less helpful. The lower sentence for Azari may be explained by inclusion of the s 16BA offences on the schedule, rather than as separate charges on the indictment, and by Azari’s relative youth.  

    Leave to appeal granted. Appeal dismissed.
  • 20 August 2021 —

    R v Large [2021] NSWDC 429 — child exploitation offences — sentence — nature and circumstances — rehabilitation — mental condition

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

    Nature and Circumstances: With the exception of one animation image, actual children were used in the creation of the material. The total number of 868 depictions is not very large for offending of this type. The gravity of the offending and depravity involving depictions of infant, toddler and early years children is particularly high. The offender was not part of an organised collaborative network but nor did they act alone. Given the purpose of the legislation to protect children, a higher level of vulnerability of the victims is an aggravating factor in the assessment of objective seriousness. Offender’s obtaining of the depictions inherently encouraged injury and damage to all the victims. Possession offence is in the low range but toward the middle range. Distribution offence falls into the low range.  

    Rehabilitation: Offender has previously been sentenced for State child abuse offences. Offender’s letter to the court is devoid of expression of appreciation of harm done to the victims and is a direct exposure of lack of insight into offending. Offender has previously breached parole in 2004. While offender remained for 17 years in control of his sexual attraction, and whilst the subject offending did not, as prior offending did, involve contact offending, seeing the child abuse material was sufficient to trigger offending and overcome resources of control.  

    Mental Condition: Offender’s moral culpability is less than for an offender whose formative years have not been marred by deprivation of basic needs of love and safety, by severe physical violence from their father combined with a lack of protection from their mother, starvation of affection and having been sexually assaulted at the age of 14. Psychologist did not say that those factors did in fact contributed to the offending but that they may have contributed to the development of deviant attraction. The moderation is not as significant as it might otherwise be in a case where the hardship more informs the criminal conduct. Offender was assessed to not suffer any specific post-traumatic stress response to those experiences.  

    Offender sentenced to 4 years and 6 months imprisonment with a 3 year, 3 month and 10 day non-parole period.
  • 19 August 2021 —

    R v Whittaker [2021] ACTSC 189 — child exploitation offences — sentence — nature and circumstances — antecedents — guilty plea — cooperation

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    The offender was sentenced following pleas of guilty to 2 counts of using a carriage service to transmit an indecent communication to a person under 16 years of age contrary to s 474.27A(1) of the Commonwealth Criminal Code and 1 count of possessing child abuse material obtained by using a carriage service contrary to s 474.22A(1) of the Commonwealth Criminal Code. Offender sentenced to additional State offences.

    Nature and Circumstances: The offending in the first transmission was of low objective seriousness as the conduct depicted the offender hugging and kissing the complainant, who was 15 years old. The offending in the second transmission was objectively seriousness because of its graphic content and the age difference between the offender and complainant. Both transmissions were designed to reach the complainant only. The offender’s possession of child abuse material, though for personal use, was objectively serious given the substantial quantity of 383 files, abuse of at least 100 actual children and inclusion of more serious conduct.

    Antecedents: Offender was sentenced in 2002 for offences of aggravated indecent assault on a person under 16 years and having sexual intercourse with a person aged between 10 and 16 years. These offences were not fundamentally different in nature to the current offences. The offender was a registered child sex offender for almost all the period between 2002 and 2018 when the current offences commenced.

    Guilty Plea: Offender pled guilty to each charge at the earliest reasonable opportunity, which carried significant utilitarian value. Discount of 25% was allowed for all sentences. Section 16AAB applies as offender was convicted of Commonwealth child sexual abuse offence and has previously been convicted of a child sexual abuse offence. Section 16AAC allows for a lesser sentence of up to 25% to be imposed because of a plea of guilty.

    Cooperation: Offender provided necessary passwords and made admissions to police. The admissions were not extensive and do not justify a discount. The offender was legally required to provide the passwords. Such compliance with the law does not entitle a person to a discount.

    Offender sentenced to 9 years and 6 months imprisonment. No federal non-parole period set. Non-parole period for State offences set for 4 years and 9 months.
  • 9 August 2021 —

    Assi v The Queen; Jomaa v The Queen [2021] NSWCCA 181 — importation offence — appeal against sentence — parity — failure to comply

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    Co-offenders were sentenced following pleas of guilty to 1 count of conspiring with others with the intention of dishonestly causing a loss to a third party, the Australian Border Force, contrary to s 135.4(3) of the Commonwealth Criminal Code. Original sentence imposed on Assi 24 months and 3 weeks imprisonment to be released on recognisance release order after 15 months and 3 weeks. Original sentence imposed on Jomaa 26 months imprisonment to be released on recognisance release order after 17 months. Both offenders appealed on the basis that they had a justifiable sense of grievance regarding the sentence imposed. Jomaa also appealed on the basis that the sentencing judge erroneously took s 16A(2)(fa)(ii) into account as an aggravating factor.

    Parity: Assi sought to deploy their entrapment as something that distinguished their circumstances from that of Jomaa. However the offenders were not entrapped by the UCO into doing something they would not otherwise do, but did find themselves participating in a conspiracy to import a larger amount than they might otherwise have by reason of the UCO’s conduct. That finding of the sentencing judge was equally applicable to both offenders with the consequence that it adds nothing to any differentiation. Sentencing judge correctly recognised the greater objective seriousness of Jomaa’s participation in the Dubai conspiracy by reason of status as licensed customs broker, was partially offset by Assi’s limited criminal record and an assessment that Jomaa’s 16BA matters were slightly less serious than Assi’s 16BA matters.

    Failure to Comply: The sentencing judge found that by reason of Jomaa’s position as customs broker, the offender failed to comply with an obligation under a law of the Commonwealth. This reveals error. Nothing about Jomaa’s status as a licensed customs broker meant that conduct involved a failure to comply with an obligation under a law about pre-trial disclosure, or ongoing disclosure, in proceedings relating to the offence. No lesser sentence warranted at law.

    Leave to appeal granted. Appeal dismissed.
  • 30 July 2021 —

    DPP (Cth) v Brandi [2021] VCC 1045 — dishonesty offences — sentence — nature and circumstances — contrition — delay

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    The offender was sentenced following pleas of guilty to 2 counts of dishonestly obtaining a gain from the Commonwealth contrary to s 135.1(1) of the Commonwealth Criminal Code.

    Nature and Circumstances: Dishonesty was blatant as offender intentionally created false invoices to obtain GST refunds to which the entities were not entitled. Offending was motivated by offender’s financial connection to the companies for which they prepared tax documents. Offender had loaned money to the companies and had a close business relationship with the director of the companies. As principle accountant offender had authorised access to ATO systems and thus was in a position which they grossly breached.  

    Contrition: At the time of offender’s guilty plea offender possessed cheque provided to the informant making full reparation to the ATO. Offender has accepted full responsibility for conduct and has expressed degree of genuine remorse. There is little evidence of remorse in terms of the wider effect of conduct on the community.  

    Delay: Some of the delay can be attributed to legal professional privilege claim made by offender that took some years to resolve. Delay in this instance, however caused, is significant. In the time since the offending there has been other litigation both civil and disciplinary ongoing. Delay still carries considerable weight.  

    Offender sentenced to 2 years imprisonment to be released forthwith on recognisance release order. Reparation order made.
  • 30 July 2021 —

    Singh v The Queen [2021] WASCA 135 — carriage service offence — appeal against sentence — nature and circumstances — family and dependents

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    Offender was sentenced following a plea of guilty to 1 count of using a carriage service in a way that reasonable persons would regard as being menacing, harassing or offensive and which involved the transmission, publication and distribution of private sexual material, contrary to s 474.17A(1) of the Commonwealth Criminal Code. Original sentence imposed 20 months imprisonment, to be released on recognizance after 10 months. Offender appealed on the basis that the sentencing judge failed to take into account certain matters, including emails sent by the victim, that the offender’s actions were provoked by the victim, the nature of the content sent to the victim’s brother and father and the effect immediate imprisonment would have on the offender’s family responsibilities and debt on his business. Offender also alleged a number of miscarriages of justice.

    Nature and Circumstances: Victim had sent to the offender’s wife a screenshot of the private sexual material as the offender’s wife and father did not believe the victim when they were told of the offender’s conduct. In this context, the victim’s conduct was understandable. The victim’s conduct did not ‘provoke’ or reduce the criminality of the offender’s actions. Material that the offender complained was not taken into account by the sentencing judge was not identified with any precision and was not put before the court. Sentencing judge’s remarks that the offender transmitted private sexual material to the victim’s family in the form of videos was not a material error as it was not capable of affecting the sentence imposed. The content of the transmitted material was, in substance, the same, regardless of its form.

    Family and Dependents: It is an inevitable consequence of imprisonment that family members who are close to an offender and may be economically dependent upon them will suffer as a result of the offender’s incarceration. Ordinarily, such matters are not mitigatory. There was nothing to indicate the offender’s family and business responsibilities fell into the exceptional category of cases where such factors may be considered mitigatory.

    Leave to appeal refused. Appeal dismissed.
  • 27 July 2021 —

    DPP v Munn [2021] VCC 1038 — child exploitation offences — sentence — antecedents — contrition — rehabilitation — COVID-19 — mandatory sentences

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    The offender was sentenced following pleas of guilty to 2 counts of using a carriage service with the intention of procuring a sexual act with a person believed to be under 16 years of age.  

    Antecedents: Offender had lifetime obligations under the Sex Offender Registration Act. Offender previously imprisoned for variety of serious sexual offences against a child as well as a charge of possession of child pornography. Past offences trigger mandatory sentencing provisions.  

    Contrition: It is troubling that offender has reoffended in this way. Offender is relatively insightless and still to some degree downplaying offending. The case against the offender was overwhelming. The strength of the case does impact upon the inferences that might be drawn from the fact of the guilty plea. Offender is not revelling in the offending. Offender is a work in progress and not resistant to exploring why they offended in this way.  

    Rehabilitation: Offender has not been deterred by being sent to prison previously. Offender was already well and truly over the brink when they chose to communicate in this way with the intention they had. It is possible that pharmacological treatment may reduce risk but it is too early to know if that is something open in the future or an option which they will avail themselves of.  

    COVID-19: The impact of the virus upon prisoners has been lessening in the course of this year, with visits and courses getting back underway earlier this year. Whilst generally the community has been travelling well, it is not that difficult to see how restrictions may spring up again as they have in the past. There will be some ongoing anxiety amongst prisoners. It has not been easy for the offender in such a setting.  

    Mandatory Sentences: There is a mandatory minimum period specified.  Reduction for a guilty plea is capped at 25% and is discretionary. All of the case law dealing with legislation setting out statutory minimum period makes it clear that thought he mandatory provisions modify some of the principles of sentencing they in no way oust the matters that a court must have regard to in assessing the seriousness of the offence. Court was not prepared to engage in two step sentencing in the absence of a very direct statement from the Legislature in the body of the Act itself.  

    Offender sentenced to 6 years imprisonment with a 4-year non-parole period.    
  • 23 July 2021 —

    R v Choi (No 10) [2021] NSWSC 891 — sanction offences — sentence — nature and circumstances — guilty plea — contrition — general deterrence

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    The offender was sentenced following pleas of guilty to 1 count of engaging in conduct that contravened a UN sanction enforcement law, contrary to s 27(1) of the Charter of the United Nations Act 1945 (Cth) and 1 count of engaging in conduct that contravened a sanction law contrary to s 16(1) of the Autonomous Sanctions Act 2011 (Cth). Additional offences taken into account pursuant to s 16BA.  

    Nature and Circumstances: The offending conduct comprised brokering services provided by the offender to North Korea for the sale of North Korea of arms, military equipment, coal and pig iron, and the purchase by North Korea of refined petroleum products. These transactions were prohibited by sanctions. None of the transactions which the offender brokered came to fruition. The arms transaction was suspended as a consequence of increased international surveillance. Offender’s role in IMU transaction and coal transaction ceased as a result of their arrest. The offender did not voluntarily desist from providing brokering services. Offender was intent on breaching sanctions which they regarded as unjust in order to help the people of North Korea by finding purchasers for their products, and commodities and obtaining petroleum for North Korea’s domestic use. The potential damage was of a kind that was significant. Although the part played was relatively small, conduct undermined the sanctions in ways which can be very difficult tot detect and prevent. The offences are in some senses comparable to an offence such as dealing with the proceeds of crime. The product may be an otherwise lawful product but if it has been stolen then the offender commits an offence. Conduct such as the offender’s has a corrosive effect on the sanctions. The provision of the services was motivated both by financial benefit and a desire to breach the sanctions.  

    Guilty Plea: The late timing of the plea would appear to be inconsistent with a finding that the offender was contrite however the change in indictments is relevant. The combined effect of conditions of custody and difficulty with English made it difficult for the offender to obtain any meaningful legal advice or engage in negotiations with the Crown.  

    Contrition: Offender’s period in custody has caused them to change their attitude to their offending conduct. The offender now acknowledges that they were wrong to breach the sanctions as a way of protesting against them. Although the offender continues to regard the sanctions as unjust and adversely affecting people, the offender appreciates that protest against them ought not to take the form of illegal conduct.  

    General Deterrence: Many international brokers have little concern with the work of the UN or nation States in imposing sanctions. They may not appreciate the effect of providing sanctioned service. Such offences can be committed by communications over the internet and telephone from people’s homes or other private places where there is little or no opportunity for outside scrutiny.  

    Offender sentenced to 3 years and 6 months imprisonment.
  • 23 July 2021 —

    Urdanegui v The Quen [2021] NSWCCA 170 — drug importation offence — appeal against sentence — guilty plea

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    The offender was sentenced following a plea of guilty to importing a marketable quantity of a border-controlled drug contrary to s 307.2(1) of the Commonwealth Criminal Code. The offence related to 375.6g of pure cocaine. Original sentenced imposed 7 years imprisonment with a 4 year and 6 month non-parole period. The offender appealed on the basis that the sentencing judge failed to take into account the utilitarian value of the offender’s guilty plea.  

    Guilty Plea: The offender was sentenced well after the decision in Xiao v The Queen. The written submissions of the parties on sentencing acknowledged the fact of an early guilty plea and that the Court should take the utilitarian value of that plea into account. The sentencing judge referred to the offender facilitating the course of justice. The reference is not to the offender’s subjective willingness to do so. Subjective willingness is ordinarily weighed as part of the overall sentencing exercise. The fact that the discount applied was not specified did not of itself constitute an error. Nor did it provide a basis for inferring that the sentencing judge had not applied a discount where they had expressly stated they were doing so.  

    Leave to appeal refused.    
  • 21 July 2021 —

    DPP (Cth) v Kannan & Anor [2021] VSC 439 — slavery offences — sentence — nature and circumstances — victim of offence — extra-curial punishment — mercy

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    The offenders were sentenced following trial of 1 count of intentionally possessing a slave contrary to s 270.3(1) of the Commonwealth Criminal Code and 1 count of intentionally exercising over a slave any of the powers attaching to the right of ownership, namely use, contrary to s 270.3(1) of the Commonwealth Criminal Code.  

    Nature and Circumstances: Offenders developed almost absolute control over all aspects of Natarajan’s day-to-day life. Offenders paid her minimal sums of money, controlled how and when she worked, controlled her communications, and controlled how and when she received health care. Actions were such to subjugate Natarajan over an extended period of years, far beyond examples reflected in other Australian slavery cases. Kumuthini’s actions were of a more aggravated nature. Kumuthini had the say in running the household and controlled Natarajan’s recourse to health care and communications between her and her family. Kandasamy was more at arm’s length. This does not excuse their action, but perhaps puts such actions, as well as failure to take action in somewhat of a different light. The number and brazen quantity of lies has been nothing short of astonishing.  

    Victim of Offence: It matters little that Natarajan may have been happy for some or even a significant part of that period defined by the condition of slavery. Whatever happiness to her may have meant, such a state if it existed must be evaluated in the context of her overall life experience. What matters is the fact of the powers being exercised over her. Natarajan declined to provide a victim impact statement. A vulnerable person was exploited by well-educated and intelligent people in order to bring advantage to the offenders.  

    Extra-Curial Punishment: Offenders have suffered, and will continue to suffer, a degree of extra-curial punishment as a result of the circumstances relating to their children.  Psychologist observes that it has been exceedingly difficult to encourage offenders to make necessary and appropriate plans for how their children will be accommodated and looked after should they both be incarcerated and that this is reflective of the offender’s prevailing mental health issues. Offender’s children with special needs will be severely adversely affected should they both be sentenced to imprisonment. Failure to make arrangements did offender no credit whatsoever and reinforces the opinion that offenders have persistently failed to come to grips with the realities and practicalities of their situation.  

    Mercy: Exceptional circumstances have been made out, and children will suffer particular hardship should they both be imprisoned. In each of offender’s circumstances, they would find imprisonment more burdensome as a result of anxiety and emotional hardship associated to hardship of children.  

    Kumuthini Kannan sentenced to 8 years imprisonment with a 4 year non-parole period. Kandasamy Kannan sentenced to 6 years imprisonment with a 3 year non-parole period.
  • 21 July 2021 —

    Martellotta v The Queen [2021] NSWCCA 168 — drug importation offences — appeal against sentence — parity

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    The offender was sentenced following trial of attempting to possess a commercial quantity of an unlawfully imported border-controlled drug contrary to ss 307.5(1) and 11.1(1) of the Commonwealth Criminal Code. The offence related to 4.34kg of pure cocaine. Original sentence imposed 6 years imprisonment with a 4 year non-parole period. The offender appealed on the basis that they had a justifiable sense of grievance regarding the sentence imposed in comparison with that of a co-offender.   Parity: A parity ground does not afford an offender an opportunity to imougn the sentencing judgment of a co-offender by alleging error in the sentencing judgment for a co-offender. A parity ground is to be resolved by reference to comparison between sentence imposed on offender and sentence imposed on co-offender. A question arises as to whether the two sentences can be explained by reference to the different material before each sentencing judge. All that can sensibly be concluded by the respective descriptions as to objective seriousness is that the objective seriousness of co-offender’s offending was greater than that of the offender because their role in the offending conduct was greater. Effect of co-offender’s subjective circumstances reduced their moral culpability. The offender’s difficulties arose from the vicissitudes of adult life, whereas those of the co-offender arose from childhood experiences. The reasons of the sentencing judges are sufficient to explain the respective sentences imposed.   Leave to appeal granted. Appeal dismissed.
  • 15 July 2021 —

    O’Hara v The Queen [2021] WASCA 123 — child exploitation offences — appeal against sentence — maximum sentences — totality

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    Offender was sentenced following pleas of guilty to offences contrary to the Commonwealth Criminal Code, namely, 1 count of using a carriage service to do an act in preparation for engaging in sexual activity with a person under 16 years of age, contrary to s 474.25C, 5 counts of using a carriage service to transmit a communication being someone the offender believed to be under 16 with the intention of making it easier to procure the recipient to engage in sexual activity contrary to s 474.27(1), 2 count of using a carriage service to transmit communication to someone believed by offender to be under 16 which included indecent material contrary to s 474.27A(1), 6 counts of using a carriage service to transmit child pornography material contrary to s 474.19(1)(a). Original sentence imposed 4 years imprisonment with a 2 year non-parole period. Offender was sentenced for additional state offences. Offender appealed on the ground that the sentences were manifestly excessive, that the total effective sentence infringed the totality principle, and that in relation to indecent material transmission offences the wrong maximum penalty was applied.

    Maximum Sentences: While there are cases where an error as to the prescribed maximum penalty was found not to be material, generally speaking, such an error will be material. The Court proceeded on the basis that the offender was to be resentenced on all offences committed, bearing in mind that sentences imposed on counts 6, 12 and 17 were ordered to be served wholly concurrently.

    Totality: If one or more of the individual sentences for the offending is infected by error, the court’s jurisdiction to resentence offences beyond those infected by error would be enlivened, even if the erroneous individual sentences had been ordered to be served wholly concurrently. Sentencing judge’s error was material because it was capable of affecting the judge’s assessment of the seriousness of counts 6, 12 and 17.

    Leave to appeal granted. Appeal allowed. Offender sentenced to 3 years and 6 months imprisonment with an 18 month non-parole period.
  • 9 July 2021 —

    Huynh v The Queen [2021] NSWCCA 148 — dishonesty offences — diversionary orders — discharge without proceeding to conviction

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    The offender was sentenced following pleas of guilty to 4 counts of receiving financial advantage from a Commonwealth entity contrary to s 135.2(1) of the Criminal Code. The Magistrate, without passing sentence, released the offender on a conditional release order under s 20(1)(a) of the Crimes Act 1914 (Cth). The offender appealed against both conviction and sentence to the District Court of New South Wales under s 11(1) of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act). At the hearing of the appeal in the District Court, an issue arose as to whether the District Court of New South Wales could exercise the power conferred by ss 20BQ or 19B of the Crimes Act 1914 (Cth) to dismiss the charges and not enter convictions on an appeal against sentence or conviction under s 11(1) of the CAR Act. Judge Hanley SC submitted questions for the determination of the Court of Criminal Appeal.

    The Court of Criminal Appeal held that on an appeal against sentence pursuant to s 11(1) of the CAR Act, the District Court of New South Wales does not have the power to set aside a conviction imposed by the Local Court, dismiss the charge and discharge the offender pursuant to s 20BQ(1). It further held that on an appeal against sentence pursuant to s 11(1) of the CAR Act, the District Court does not have the power to set aside a conviction imposed by the Local Court and make orders pursuant to s 19B.  

    Diversionary orders for offenders with mental illness: Section 20BQ does not vest jurisdiction in any court to hear proceedings in which the relevant person is charged. Rather, the provision assumes that the court dealing with the relevant offender is otherwise possessed of jurisdiction in respect of that charge. For the power conferred under s 20BQ to be exercised on appeal under the CAR Act, the District Court must be able to set aside the conviction imposed on the appellant. There is no power conferred by the CAR Act on the District Court to set aside a conviction where the appeal only concerns a sentence. On a sentence appeal in respect of a federal offence, no power to set aside a conviction is conferred on the District Court that can be picked up and applied by either or both s 68(1) and s 79(1) of the Judiciary Act 1903 (Cth).  

    Discharge without proceeding to conviction: Section 19B does not vest jurisdiction in any court to hear proceedings in which the relevant person is charged. Rather, the provision assumes that the court dealing with the relevant offender is otherwise possessed of jurisdiction in respect of that charge. In relation to s 19B, the District Court may only exercise the power conferred by s 19B on a sentence appeal if the Court was able to exercise some power to set aside the conviction that could be picked up and applied by either s 68(1) or s 79(1) of the Judiciary Act 1903 (Cth). Section 3(3A) of the CAR Act does not supply a source of power, as it is expressed to only operate in respect of an order made under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and is not capable of being picked up and applied to s 19B.  
  • 9 July 2021 —

    DPP (Cth) v Halbisch [2021] NSWDC 306 — child exploitation offences — sentence — nature and circumstances — victim of offence

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    The offender was sentenced following a plea of guilty to 1 count of using a carriage service to transmit communications to the recipient, a person under the age of 16, with the intention of procuring the recipient to engage in sexual activity with them contrary to s 474.26(1) of the Commonwealth Criminal Code. Additional offence taken into account pursuant to s 16BA.  

    Nature and Circumstances: The victim was 7 years of age at the time of offending. Nothing indicates that the offender was aware of the precise age of the child. However, victim sent photographs of her bed and trampoline. It must have been apparent to the offender that he was communicating with a young child. The age difference between offender and victim is almost 20 years. The communications relevant to the offence occurred over a period of about 20 minutes but included persistent requests by the offender including instructions as to what to do. The requests were sexually explicit. Procuring matter is at mid-range of seriousness but in the lower half of the mid-range.  

    Victim of Offence: Commonwealth relied on victim’s mother’s statement because of young age of victim. Although victim was able to give own statement, it is relevant where the victim is so young to have a parent or guardian also indicate the harm that is caused by the offending. Clearly offending has had long lasting, significant and very adverse effect on the victim. Victim has Autism Spectrum Disorder, but the offender was not aware of that. Victim is hyper vigilant since offending. Noting absence of any medical or mental health professional’s report, there is little further to be made of contents of victim impact statements.  

    Offender sentenced to 3 years and 9 months imprisonment with a 2 year and 3-month non-parole period.
  • 6 July 2021 —

    DPP v Perre [2021] VCC 928 — drug offence — sentence — contrition — delay — COVID-19

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    The offender was sentenced following a plea of guilty to 1 count of possessing a controlled drug contrary to section 308.1(1) of the Commonwealth Criminal Code. Offence related to 14.5 grams of pure methamphetamine. Further offence taken into account under s 16BA.

    Contrition: Offender was co-operative with AFP members who searched their home. While offender is undoubtedly regretful for the situation and the effect this has had, and will continue to have on them, there is insufficient evidence to make finding of true contrition and remorse for offending conduct beyond what is evident from the guilty plea itself.

    Delay: It is three years and four months since the offender was arrested and charged, which is a mitigating circumstance. There will always be some delay in prosecuting cases of this kind but here there has been more than the usual delay which was mostly beyond offender’s control. The prospect of a sentence of imprisonment hanging over the offender’s head during the period of delay would have caused significant stress and anxiety akin to punishment in itself. The offender was also subject to fairly onerous bail conditions during this period including daily reporting, a curfew and restrictions on their mobile phone and internet use.

    COVID-19: Offender is at a higher risk of contracting COVID-19 if incarcerated. The inherent utilitarian value of a guilty plea is greater during the pandemic. The pandemic is causing additional stress for the offender and their family. Visits, work and educational opportunities could be impacted by cases of COVID-19.

    Offender sentenced to pay a fine of $2000 to the Commonwealth Director of Public Prosecutions.
  • 5 July 2021 —

    DPP (Cth) v Landry [2021] VCC 903 — fraud offences — sentence — nature and circumstances — mental condition — guilty plea — rehabilitation

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    The offender was sentenced following pleas of guilty to 1 count of dishonestly causing loss to a Commonwealth entity and 1 count of attempting to dishonestly cause loss to a Commonwealth entity contrary to the Commonwealth Criminal Code.

    Nature and Circumstances: The offending was serious and significant. Offender fraudulently claimed an amount just shy of $500,000. Offending was inherently serious as it abused the NDIS scheme. Once registered as a provider, the NDIS was an honesty-based system. Claims were then generally accepted and processed in good faith without supporting documentation having to be produced nor further investigation taking place. Offender seized the opportunity to cheat the system and improve their financial situation over a period of over three months. Offender had the opportunity to desist, but instead chose to continue to exploit the scheme. Offending thereby involved a level of calculation and persistence. Offending was not overly sophisticated. Offender did not register with the intention of defrauding the system and did not attempt to conceal their identity.

    Mental Condition: The offender’s moral culpability was moderately reduced by their autism spectrum disorder. Offender’s motivation of greed was somewhat coloured by the fact that the offending was committed by an isolated, impulsive, young person craving recognition, societal affirmation and belonging. Autism interacted with offender’s unstable background. Offender did not have the benefit of sustained support to manage their autism. Offender was, to some extent, less equipped in comparison to a person of normal mental health to resist the offending, desist from it or fully turn their mind to how society would view such conduct. While there was a realistic connection between the offender’s autism and offending, there was not an extensive relationship between the two. Adverse public opprobrium has weighed more heavily on offender than it may have on a person who does not suffer from autism.

    Guilty Plea: Plea of guilty was worthy of greater weight in mitigation because of the COVID-19 pandemic. Offender demonstrated an acceptance of responsibility for their conduct and a willingness to facilitate justice. Offender’s plea of guilty and voluntary restitution also demonstrated remorse.

    Rehabilitation: Offender was a person of good character and had not reoffended since their apprehension for the current matters in question. Offender had also been serving a community correction order for subsequent offending and demonstrated a high level of compliance. Offender’s prospects are dependent upon impulsive and disinhibited behaviour towards money being controlled. Offender’s impulsiveness towards money is troubling for them and the community.

    Offender sentenced to 3 years imprisonment, to be released after 16 months on a recognizance release order.
  • 25 June 2021 —

    R v Delzotto [2021] NSWDC 325 — child exploitation offences — sentence — mandatory minimum sentences — mental condition — extra-curial punishment

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    The offender was sentenced following pleas of guilty to 1 count possessing or controlling child abuse material obtained or accessed using a carriage service contrary to s 474.22A(1) of the Commonwealth Criminal Code and 1 count of using a carriage service to access child abuse material contrary to s 474.22(1) of the Commonwealth Criminal Code. Additional offences taken into account under s 16BA.  

    Mandatory Minimum Sentences: Current offending is a second or subsequent child sexual abuse offence. Section 16AAB is not concerned with whether a sentence is of severity appropriate in all the circumstances. The notion of an appropriate sentence is distinct from the requirement to set a mandatory minimum sentence. There is nothing the legislation of the section which suggests, let alone requires, that it be understood as applying to minimum sentences to cases in the least culpable category of seriousness. The section says nothing about seriousness, it simply requires a sentence to be imposed of at least the specified length. Section 16AAB must be read as far as possible consistently and harmoniously with the requirement to impose a sentence that is of severity appropriate to all the circumstances.  

    Mental Condition: Offender suffered major depressive disorder at time of offending. Major depressive disorder was causal and contributed to offending. Alcoholism led to disinhibition and offender crossed moral boundaries. Moral reason and judgment was impaired due to major depression and substance abuse. On balance the moral culpability has been reduced.  

    Extra-Curial Punishment: Offender was subject to abuse, violence and harassment by his neighbour as a result of the offending. Offender has also been subject to abuse and threats in local community. Offender has lived in fear, particularly since publication of an article detailing offending in February 2021. Court can take into account any serious loss or detriment the offender has suffered as a result of committing the offence. This is so even when the detriment is extra curial punishment inflicted by a private person exacting revenge.  

    Offender sentenced to 3 years and 3 months imprisonment with a 2 year and 2 month non-parole period.
  • 25 June 2021 —

    R v Payne-Moore [2021] ACTSC 125 — child exploitation offences — sentence — nature and circumstances — extra-curial punishment

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    The offender was sentenced following pleas of guilty to 1 count of using a carriage service to possess or control child abuse material contrary to s 474.22A(1) of the Commonwealth Criminal Code and 1 count of using a carriage service to access child abuse material contrary to s 474.22(1) of the Commonwealth Criminal Code.  

    Nature and Circumstances: The content of the child abuse material possessed is graphic, violent and reflects a very high level of depravity and depicts real child victims. There are an estimated 75 to 100 victims depicted in the material. Neither the possession or access offences were for the purpose of sale, further distribution or profit. Offender possessed material over three and a half months.  

    Extra-Curial Punishment: It follows from the requirement that such offences attract significant community denunciation and general deterrence that the ordinary opprobrium flowing from detection, charging and conviction cannot warrant mitigation. A reasonable degree of community disgust and denunciation accords with the Court’s primary sentencing purposes and it would be erroneous to offset natural consequence by diminishing the sentence. Retributive assault is the paradigm example of extra-curial punishment. Offender was assaulted by an unknown woman throwing hot wax over the offender in a public bar.  

    Offender sentenced to 15 months imprisonment to be released on recognisance after 4 months imprisonment.
  • 24 June 2021 —

    R v Amson [2021] NSWDC 280 — child exploitation offences — sentence  — nature and circumstances  — contrition  — antecedents  — rehabilitation

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    The offender was sentenced following a plea of guilty to using a carriage service to groom a person they believed to be under 16 years of age contrary to s 474.27(1) of the Commonwealth Criminal Code.  

    Nature and Circumstances: Offence may be less objectively serious when the communication is to a fictitious person than a child. Contact was initiated by the police and not offender’s actively messaging, communicating or attempting to befriend persons. The circumstances where the undercover police operative initiated contact, in some not all instances or engaged in manifestly flirtatious conduct, effectively bringing out offender’s latest sexual interest in children, does not materially reduce the seriousness of the offending. Although efforts were made by offender to conceal offending, they were not particularly sophisticated, the nature of future sexual activity was rather oblique and there was no applicable previous relationship of trust between offender and believed victim.  

    Contrition: Offender said that they accepted full responsibility on at least three occasions, but other times adhered to an account given to third persons to the effect that although offender recognised offending was serious, it was explicable to not thinking of the consequences. Offender could not explain multiple indications within communications where they asked victim to delete records of conversations. Offender said that although they may have indicated desire to meet, they had no real intention to meet. This significantly diminished credibility as a witness. Remorse is only limited.  

    Antecedents: Offender has lengthy criminal history, including that of sexual offending and exploitation of children. Record of offences is stretched out during their adult years. It is the record of a person with close familiarity with criminal justice system which may help explain nature of some of the evidence and view expressed by psychologist of a tendency to say things which they think an interlocutor might want to hear. Prior offending indicates that instant offending was not uncharacteristic aberration but rather betokened a continued attitude of disobedience of the law.  

    Rehabilitation: Corrections identified offender’s risk of offending to be high. The officer had formed a provisional view of offender’s likelihood of re-offending, read the psychologist’s view and thereafter upgraded assessment of risk of re-offending. Corrections officer would have given weight to specialised knowledge of psychologist. The weight to be accorded to revised view is not materially diminished simply because officer did not expressly specify how content of psychologist’s report influenced her.  

    Offender sentenced to 3 years and 2 months imprisonment with a 2-year, 2 month and 19 day non-parole period.
  • 23 June 2021 —

    Olivares v The Queen [2021] NSWCCA 126 — drug importation offences — appeal against sentence — guilty plea — Xiao error — cooperation

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    The offender was sentenced following pleas of guilty to 1 count of trafficking in a substance, the substance being a controlled drug namely methamphetamine and the quantity trafficked being a commercial quantity contrary to s 302.2(1) of the Commonwealth Criminal Code, and 1 count of dealing with money or other property, it being reasonable to suspect that such money or other property was proceeds of crime, the value being less than $100,000, contrary to s 400.9(1A) of the Commonwealth Criminal Code. The original sentence imposed 15 years imprisonment with a 9 year and 6 month non-parole period. The offender appealed on the basis that the sentencing judge failed to give a discount for the utilitarian value of the offender’s plea of guilty.  

    Guilty Plea and Cooperation: Offender is entitled to a discount on sentence having regard to utilitarian value of guilty plea. Plea was not early and only a 10% discount is allowed. Offender provided assistance to authorities and is entitled to a further discount of 5%. Offender provided considerable cooperation to police immediately prior to, during and after arrest. Offender informed police that there were packages in the bathroom ceiling so that police may uncover them. Offender provided extensive information as to circumstances of involvement and process and mechanics by which they were supposed to be passing on the drugs.  

    Appeal allowed. Sentence quashed. Offender sentenced to 11 years and 6 months imprisonment with a 6 year and 11 month non-parole period.
  • 18 June 2021 —

    Chenhall v The Queen [2021] VSCA 175 — child exploitation offences — appeal against sentence — guilty plea — manifest excess

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    The offender was sentenced following pleas of guilty to 1 count of transmitting indecent communications to a person under 16 years of age contrary to s 474.27A(1) of the Commonwealth Criminal Code, 1 count of using a carriage service to cause child pornography material to be transmitted to themselves contrary to s 474.19(1) of the Commonwealth Criminal Code and 1 count of using carriage service to transmit child pornography contrary to s 474.19(1). Offender sentenced for additional State offences. Original sentence imposed 5 years and 6 months imprisonment with a 4 year non-parole period. The offender appealed on the grounds that the sentencing judge erred in finding there was no greater utilitarian value in guilty plea due to COVID-19, and that the sentence was manifestly excessive.  

    Guilty Plea: Sentencing judge was specifically asked to attribute greater weight to plea of guilty due to COVID-19 and declined to do so. Judge erred in so declining. Plea, entered during the pandemic, did its bit to ease the trial backlog, and the offender, who was on bail submitted themselves to more onerous conditions than would otherwise have been the case. Had a greater utilitarian benefit been allowed, it would have provided some incentive to others in a similar position to offender to plead guilty with the concomitant benefit to a justice system under great pressure.  

    Leave to appeal granted. Appeal allowed. Offender sentenced to 5 years imprisonment with a 3 year and 6 month non-parole period.
  • 15 June 2021 —

     Bowers v Commonwealth Director of Public Prosecutions [2021] QDC 106 — aviation offences — appeal against sentence — hardship to offender

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    Offender was sentenced following a plea of guilty to an offence of smoking on an aircraft contrary to Reg 255(1)(a) of the Civil Aviation Regulations 1988 (Cth). Original sentence imposed $200 fine and recording of conviction. The offender appealed on the basis that the sentence was manifestly excessive.  

    Hardship to Offender: Sentencing Magistrate initially misapplied test of 19B. Once error was brought to Magistrate’s attention they did not precisely conform to the words of the statute. Offender’s conduct amounted to breach of a statutory regulation. It is not a criminal offence. Distinction is relevant when considering the impact that recording of conviction is likely to have on offender’s visa status, impending application for citizenship and employment. Recording of conviction may result in some questions being asked, but it was open to find that there would be no real impact. It may well have been that a different Magistrate would have sentenced under s19B but there was not only one appropriate sentence open in the circumstances of the matter.  

    Leave to appeal against sentence refused. Appeal dismissed.
  • 11 June 2021 —

    Regina v Evans (No 1) [2021] NFSC 2 — drug trafficking offences — sentence — conditional release order

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    The offender was sentenced following a plea of guilty to 1 count of possessing a controlled drug, cannabis, contrary to s 308.1(1) of the Commonwealth Criminal Code and 1 count of trafficking in a controlled drug, methamphetamine, contrary to s 302.4(1) of the Commonwealth Criminal Code.  

    Conditional Release Order: Crown argued it would be inconsistent with s 20AB to use s 20(1)(a)(iv) to impose a condition of home detention in a recognisance release order. The purpose of a recognisance release order is that it operates as part of an overall sentence of imprisonment in lieu of a period of parole. The power to make such an order necessarily contemplates that it may operate as a restriction on the liberty of the individual to whom it applies. It follows that it is inherent in the statutory scheme that the conditions that a court has power to include in a recognisance release order must have regard to punishment of the severity appropriate to the crime of which the offender stands convicted. Sections 19AC(1), 20(1)(a)(iv) and (b) authorise the inclusion in a recognisance release order of conditions that have the same effect that could be achieved were there power under s 20AB(1) to impose any of the alternate sentencing options including home detention.  

    Offender released on recognisance release order forthwith on the conditions of 5 years of good behaviour, and until 4 March 2022 residing at current address between 9:00pm and 6:00am.
  • 7 June 2021 —

    DPP v Marshman [2021] VCC 749 — child exploitation offences — nature and circumstances — mental condition — adequacy of punishment

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    The offender was sentenced following a plea of guilty to 1 count of using a carriage service to transmit indecent communications to a person believed to be under 16 years of age contrary to s 474.27A(1) of the Commonwealth Criminal Code.  

    Nature and Circumstances: Offending only occurred over a two-day period. Offender was determined in that they kept attempting to communicate with victim. Offending was not as serious in terms of exchange of indecent material as some other cases that come before the court. Offender was effectively over double the age of the victim. Offender had no prior relationship with victim, so was effectively picking up people on the internet at this site. Offending is in the lower scale of seriousness but is still a serious offence.  

    Mental Condition: Offender was referred for a mental health plan in 2017 and placed on an antidepressant in 2020. Offender’s counsel put that offender was immature. That is probably true but at the time of offending they were 29, so they have got to take responsibility for their conduct.  

    Adequacy of Punishment: Imprisonment has got to be a sanction of last resort. That has even got greater salience in the COVID environment where programs are less available in prisons and so prison is a more onerous sentence than it may have been 18 months ago. Sentence of imprisonment will not be imposed, but in sentencing, general deterrence is a very important factor. This is regardless of the fact that the offender had no prior convictions and was of prior good character.  

    Offender sentenced to 18 month recognizance release order.
  • 7 June 2021 —

    Afful v R [2021] NSWCCA 111 — drug importation offences — appeal against sentence — deportation — mental condition — hardship to offender

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    The offender was sentenced following a plea of guilty to 1 count of attempting to possess a commercial quantity of an unlawfully imported border controlled drug contrary to ss 11.1(1) and 307.5(1) of the Commonwealth Criminal Code. Offence related to 7.45kg of pure methamphetamine. Original sentence imposed 8 years imprisonment with a 4 year and 6 month non-parole period. Offender sought leave to appeal on basis that prospect of deportation should have ameliorated the sentence imposed, that offender’s mental condition was not sufficiently taken into account and that the offender experienced unanticipated hardship in custody.  
    Deportation: The fact of possible or pending deportation is not a relevant factor in sentencing in New South Wales. Offender is bound by the manner in which they ran their case before the sentencing judge. The fact that the offender’s deportation is still subject to revocation by the Minister or, failing that, judicial review, is another matter that means that this is not an appropriate vehicle to challenge the longstanding practice in New South Wales regarding the relevance of deportation on sentence.  

    Mental Condition: Sentencing judge expressly stated they would moderate offender’s sentence to a modest degree due to offender’s mental health problems. Co-offender was found to be marginally lower in hierarchy than offender. All other findings were broadly the same as between the two offenders. The fact that the same sentence was imposed on both is explicable on this basis. Imposition of ratio of 56% between non-parole period and head sentence based on offender’s mental health was very generous. Offence reflected grave criminality and offence carries maximum of life imprisonment.  

    Hardship to Offender: Court of Appeal is a court of error. No error is disclosed in offender’s sentence by virtue of the fact that they suffered the losses experienced after they were sentenced. The sentence imposed on the offender was a lenient one.  

    Application for extension of time refused.
  • 4 June 2021 —

    DPP (Cth) v Gorniakowski [2021] VCC 743 — child exploitation offences — sentence — victims of offence — nature and circumstances — rehabilitation

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

    Victim of Offence: There are no known victims of offending conduct however there must be hundreds of sexually abused children depicted in material transmitted, made available and possessed. In making child abuse material available to others, offender increased number of people who would view that material and thereby increased victimisation of the children depicted.  

    Nature and Circumstances: While offending overall lasted only some six days, in light of the grave nature of many of the images and video files transmitted, made available and possessed each offence is a serious example of the offence charged. Material was particularly grave in nature largely depicting children under 13 years old. By active participation in exchange, offender contributed to market for material, perpetuated its dissemination and contributed to further exploitation. Offender gained benefit by trading in that they received videos and images to view themselves and no doubt trade with others online. It is not mitigatory that offender did not otherwise profit from or pay for the child abuse material.  

    Rehabilitation: Offender instructed counsel that the offending occurred in context of drinking alcohol with consequent significant lowering of inhibitions. There is a degree of scepticism regarding this explanation. It is to the offender’s credit that they have actively engaged in alcohol and drug counselling and psychological treatment. Offender has been abstinent for alcohol and developed insight into reasons for offending. Only a cautious approach can be adopted at this stage to ultimate prospects of rehabilitation as they will ultimately depend on successful completion of appropriate treatment.  

    Offender sentenced to 3 years imprisonment to be released after 18 months on recognisance release order.
  • 4 June 2021 —

    DPP (Cth) v Colaiacovo [2021] NSWDC 218 — child exploitation offences — nature and circumstances — general deterrence

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    The offender was sentenced following pleas of guilty to 1 count of using a carriage service to transmit indecent material to a person under the age of 16 years, namely 14 years, contrary to s 474.27A(1) of the Commonwealth Criminal Code and 1 count of using a carriage service to solicit material and that material was child abuse material contrary to s 474.22(1).  

    Nature and Circumstances: Photographs and video were sent within a relatively short period of time. The recipient was not a real child. This does not make the conduct less serious; rather, it would be more serious if a real child was involved. Transmission offence is mid-range but soliciting offence is below mid-range but not significantly so.  


    General Deterrence: The principle in Porte is that general deterrence is not limited to matters involving the possession of child abuse material. Offences of possession of child abuse material and soliciting such materials are very much alike. The public policy behind the significance of general deterrence when dealing with this type of offending is the protection of children.  

    Offender sentenced to 2 years and 6 months imprisonment to be released on recognizance after 15 months.
  • 26 May 2021 —

    DPP v Wilkinson [2021] VCC 675 — child exploitation offence — sentence — nature and circumstances — contrition — extra-curial punishment

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    The offender was sentenced following pleading guilty to using a carriage service to transmit indecent communication to a person believed to be under 16 years of age contrary to s 474.27A of the Commonwealth Criminal Code.  

    Nature and Circumstances: Offence relates to sending of a single image. Photograph of naked torso and partially covered genitalia was undoubtedly indecent in context of it being intended for viewing by a 14-year old child. It was at the lower end of the scale of explicitness. There was an age gap of greater than a decade between offender and intended recipient. While victim was not someone with whom offender had special duty of trust, offender was a schoolteacher at time of conduct which adds to moral culpability in seeking to expose a child to such an image. Absence of a real child victim represents absence of an aggravating feature rather than something mitigating conduct.  

    Contrition: Where there is no victim per se the concept of remorse is not really about understanding of the damage offender’s actions have caused and empathy for those who have suffered that damage. Contrition is about offender’s understanding the wrongfulness of their actions and an acknowledgement of the damage actions could have done. Offender initially provided an account to police that was untrue on the core matter as to whether offender sent a naked image after knowing victim was under 16 years of age. Until offender entered plea they contested the very concept as to whether the communication was indecent. It is appropriate to give credit for some, if not complete, remorse.  

    Extra-Curial Punishment: As a result of offender’ actions, their career as a teacher is almost certainly finished. Whilst loss of career for conduct not directly linked to teaching responsibilities is an adverse consequence, it is to some extent balanced by the increased moral culpability attached to offending because offender had a job that gave them special understanding of the vulnerabilities of children. Case has attracted significant and legitimate media coverage. Exposure causing offender significant distress does constitute some level of punishment in itself.  

    Offender sentenced to 9 months imprisonment to be released forthwith on recognisance release order with 2 year good behaviour requirement.
  • 26 May 2021 —

    DPP v Gardiner [2021] VCC 681 — child exploitation offences — sentence — nature and circumstances — COVID-19 — rehabilitation

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    The offender was sentenced following plea of guilty to 1 count of using a carriage service to procure a person believed to be under 16 years of age for sexual activity, 1 count of failing to comply with reporting obligations, and 1 count of using a carriage service to procure a person under 16 years of age for sexual activity whilst on bail. Additional State offences were taken into account.  

    Nature and Circumstances: In 2006, offender was convicted of sexual offending again a child and registered for life under Sex Offenders Registration Act. Offender operated under a deal of secrecy and guile to commit the three principal offences to evade detection. Over the years offender continued to trawl the internet looking for children. Offender had vast and long-time trawling of Snapchat to communicate with hundreds of females. Offender retained and used hidden internet identities to go into teen social media and chat rooms.  

    COVID-19: Time in custody was affected by COVID-19 pandemic lockdown. Immediate effect was a reduction and suspension of vocational and personal improvement courses, restrictions on ability to move around the prison, severe reduction in work available and a suspension of visits. The more insidious effect of the pandemic was the stress and isolation – the fear that the pandemic would penetrate into the prison system and so isolation has been used as a strategy to limit close contact.  

    Rehabilitation: Psychologist concluded that offender did not meet, and probably never met, the diagnostic criteria for paedophile disorder. Regardless of personality traits or disorders, offender has a long history of sexually targeting children. Offender has prior convictions in 2004 for making and possessing child exploitation material in relation to a 10 year old, and conviction in 2006 for committing indecent acts in relation to a child under 16. Community must be afforded a measure of protection. As late as the date of psychological testing, which occurred after plea of guilty was entered, offender was still failing to acknowledge aberrant nature of offending, even after having previously completed the sexual offender treatment program. Rehabilitation prospects are poor.  

    Offender sentenced to 3 years, 4 months and 1 day imprisonment with a 1 year and 11 month non-parole period.
  • 25 May 2021 —

    R v Monday (a pseudonym) [2021] ACTSC 99 — child exploitation offence — sentence — nature and circumstances — mental condition

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    The offender was sentenced following a plea of guilty to possessing child abuse material contrary to s 474.22A of the Commonwealth Criminal Code.  

    Nature and Circumstances: Offence is of very low objective seriousness. Offence involved only two images and related to only one day. It was not an isolated incident. Offender told police that on occasion they had downloaded images of children when searching for other material. Content of images was serious, although images were computer-generated which means that they did not directly involve real victims. Computer-generated material does tend to fuel interest in such subject matter, including subject matter involving real children. Offences involving computer-generated material are far from harmless. Purpose of possession was personal sexual gratification. Offender intended to distribute the images to one other person.  

    Mental Condition: At time of offence, offender had major depressive disorder and borderline personality disorder. Offender tends to try to soothe feelings by using sleeping tablets, alcohol and by impulsively accessing pornography. It is clear from the evidence of clinical psychologist that there was a causative link between offender’s mental health conditions and the commission of the offence.  

    Offender released immediately on recognizance release order.
  • 24 May 2021 —

    R v McDougall [2021] ACTSC 102 — dishonesty offence — sentence — nature and circumstances — mental condition

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    The offender was sentenced following pleading guilty to dishonestly causing a loss to the Commonwealth knowing or believing that the loss would occur contrary to s 135.1(5) of the Commonwealth Criminal Code.  

    Nature and Circumstances: The amount of loss was significant. Offending of this kind causes indirect losses because of the cost of monitoring and investigating for fraud. Period of offence was 2 years and 7 months. For the entire period of the offence, offender was on the full disability pension which was awarded on the basis that they could work up to 14 hours per fortnight. Offender maintained physically demanding work on a full-time basis. Offence was detected by way of internal review and presumably but for detection it would have continued indefinitely. Loss to the Commonwealth was $59,731.60. Offender was not sophisticated. Offender deposited earnings from employment into the same account used for the DSP.  

    Mental Condition: The inescapable inference is that the motivation for the offence was financial gain. The offender’s thinking was confused particularly because of drugs that they were consuming in an attempt to counteract the effect of drugs prescribed for their mental health condition. Objective seriousness is informed by offender’s reduced moral culpability deriving from fact that they have a long-standing and very severe mental health condition. Although mental condition was relatively stable during period of offending, it nevertheless continued to impact significantly. Offender was admitted to Adult Mental Health Unit shortly before sentencing. Admission is indicative of severity of current mental health condition. Having regard to offender’s severely disabling and chronic condition of schizophrenia and personality disorders, person who is psychiatrically vulnerable like the offender is more likely to be stressed by the custodial environment, which would tend to exacerbate paranoia.  

    Offender sentenced to 14 months imprisonment to be released immediately on good behaviour bond.  Offender ordered to make reparation in the amount of $59,731.60.
  • 19 May 2021 —

    Li v The Queen (Cth) [2021] NSWCCA 100 — drug importation offences — appeal against sentence — non-parole period

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    The offender was sentenced following pleas of guilty to 1 count of attempted import of a commercial quantity of a border controlled drug contrary to s 307.1 of the Commonwealth Criminal Code, and 1 count of attempted import of a commercial quantity of a border controlled precursor contrary to s 307.11 of the Commonwealth Criminal Code. Count 1 related to 118.3kg of pure methamphetamine. Count 2 related to 264.37kg of pure ephedrine. Original sentence imposed 18 years and 2 months imprisonment with a 12 year non-parole period. Offender appealed on the basis that the sentencing judge erred in fixing the non-parole period as a proportion of the head sentence.  

    Non-Parole Period: Sentencing judge stated intention to fix a non-parole period roughly or approximate to the proportion fixed for co-offender Wang. The non-parole period ratio fixed was 66% of the head sentence, on par with the ratio set of co-offender Lau not Wong. Variation can be made to the non-parole period without the need to resentence. The error is arithmetical in that the wrong ratio was applied.  

    Leave to appeal granted. Appeal allowed. Non-parole period varied to 11 years and 3 months.
  • 17 May 2021 —

    Duong v DPP (Cth) [2021] VSCA 136 — drug importation offences — appeal against sentence — totality — guilty plea — deportation

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    The offender was sentenced following pleas of guilty to 1 count of trafficking a commercial quantity of a controlled drug (methamphetamine) contrary to ss 302.2(1) and 311.1(1) of the Commonwealth Criminal Code, 1 count of trafficking a marketable quantity of a controlled drug (heroin) contrary to ss 302.3(1) and 311.2(1) of the Commonwealth Criminal Code and 1 count of failing to comply with an order to provide telephone passwords contrary to s 3LA(6) of the Crimes Act 1914 (Cth). Count 1 related to 2747.2g pure methamphetamine. Count 2 related to 324.1g pure heroin. Original sentence imposed 10 years and 9 months imprisonment with a 6 year and 9 month non-parole period. The offender appealed on the basis that the sentences imposed offend the principle of totality and/or doubly punish the offender, that the sentencing judge erred in failing to take into account the heightened utilitarian value of the offender’s guilty plea due to consequences of COVID-19 and that the sentences were manifestly excessive.  

    Totality: Sentencing judge was entitled to treat offender as having engaged in substantial drug trafficking business involving both heroin and methamphetamine. Sentencing judge was not obliged to aggregate quantity of drugs and sentence as if offender were only engaged in the sale of a single drug. It was open to the judge to treat the sale of heroin and methamphetamine as distinct. The offender in effect operated both at a wholesale and user level and diversity of drugs was an aspect of the business. The quantity of heroin was substantial in itself and does not indicate that it was merely an incidental aspect of the business. It is not arguable that the sentencing judge must have failed to reflect overlap in offending or given disproportionate sentence merely because two drugs were involved. It was well open to the judge to order a degree of cumulation in relation to the heroin and the duration of two years was not manifestly excessive.  

    Guilty Plea: Sentencing judge did not undervalue utilitarian value merely because they did not explicitly refer to the benefit that a plea of guilty has in the current context. Sentencing judge would be acutely aware of burdens and delays that the pandemic has caused to the judicial system. With the inability to hold jury trials for an extended period, the backlog has grown. Equally, it is obvious that a plea of guilty relieves some pressure on the system.  

    Deportation: The risk of deportation can be a significant matter. When offender was last convicted, permanent residency was revoked but offender was able to have decision reversed. As a result of current conviction, permanent residency will be cancelled and offender is understandably pessimistic about having that reversed a second time. More importantly however the risk of deportation has not in the past deterred the offender from substantial criminal conduct.  

    Application for leave to appeal against sentence refused.
  • 13 May 2021 —

    R v Gundry [2021] NSWDC 238 — child exploitation offences — sentence — nature and circumstances — contrition — mental condition

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    The offender was sentenced following pleas of guilty to 3 counts of using a carriage service to access child pornography material contrary to s 474(19)(1) of the Commonwealth Criminal Code. Further offences were taken into account pursuant to s 16AB. Additional State offences were taken into account.  

    Nature and Circumstances: On 20 separate occasions, offender used phone to purchase total of 17000 images and videos. Many were of the worst level of depravity. Conduct was not isolated; it occurred over a period of two and a half years. The crimes are not victimless and the offender contributed money to entities profiting from the sales.  

    Contrition: Offender had sufficient insight into offending behaviour as early as 2018 during the commission of offences to seek treatment even though offender did not disclose offending conduct to psychologist. There has been no suggestion of further offences being committed since release on bail. Contrition has been demonstrated by early plea.  

    Mental Condition: Offender has diagnosis of Klinefelter’s Syndrome, recurrent major depressive disorder, gender dysphoria and paraphilia. Sexual deviance was primary cause of offender’s actions in obtaining the child abuse material in the first place and depressive disorder, chronic mood disturbance, and the effects of testosterone exacerbated their paraphilia. Offender’s condition would pre-dispose them to being teased, bullied or ridiculed and would probably increase risk of being sexually exploited or abused by other inmates so that a custodial sentence would be more onerous. Crown submission that there was a logical flaw in the argument that gender dysphoria was the cause of offender’s attraction to child abuse material rejected given the unchallenged history and diagnosis. There is no evidence that because of mental illness offender presents danger to community and no basis for application of proposition that considerations of specific deterrence may result in an increased sentence  

    Offender sentenced to 18 months imprisonment to be released on recognizance release order after 6 months.    
  • 11 May 2021 —

    DPP v Le & Anor [2021] VCC 582 — drug importation offences — sentence — nature and circumstances — antecedents — delay — general deterrence

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    The offenders were sentenced following pleas of guilty. Le pleaded guilty to 1 count of conspiring to import a commercial quantity of a border-controlled drug, 1 count of dealing with money that is proceeds of crime in the sum of $100,000 or more, believing it to be the proceeds of crime and 1 count of trafficking in a marketable quantity of a controlled drug. Vu pleaded guilty to 1 count of aiding and abetting, trafficking in a controlled drug and 1 count of failing to comply with an order made under s.3LA of the Crimes Act 1914 (Cth). Offence of importing commercial quantity relates to 15.94kg of pure cocaine.  

    Nature and Circumstances: Conspiracy involved high degree of sophistication. The drugs were potentially extremely high in value. Offending was not isolated but occurred over a period of 3 and a half months. Le worked under direction of cousin who resided in Vietnam. Le was however instrumental in securing the importation of cocaine. Le had senior and very trusted role in the syndicate. Role in importation was extensive. Le was willing and active participant in offending for financial gain. Le’s trafficking offence was at lower end of seriousness. In relation to Vu, the provision of the device was done in the knowledge it would be used in trafficking drugs, however offending occurred on a single day. It was not suggested that Vu knew the specific type or quantity of drugs to be trafficked.  

    Antecedents: Le was significant drug user during offending period, which spurred offending conduct. In part, offending engaged in occurred in the context of cocaine addiction and in order to fund it. Although drug use provides some explanation for offending it does not excuse it.  

    Delay: Period between arrest and sentence is over two years and is not attributable to conduct of the offenders. Vu since release on bail has utilised time and taken positive steps toward rehabilitation. Le has had prosecution and fear and expectation of being sentenced hanging over their head. Co-offenders Abdo and Fajardo are contesting charges.  

    General Deterrence: Stern punishment will be warranted in almost every case given difficulty of detecting importation offences and social consequences that follow. Level of criminality is required to be assessed though involvement at any level of offending warrants punishment. Role played by offender is of great importance in assessing objective criminality. This kind of offending, involving different players in an illicit drug network, can only succeed if people are ready willing and able to participate, whatever role they have.  

    Le sentenced to 15 years and 6 months imprisonment with a 10 year non-parole period. Vu sentenced to 18 months imprisonment to be released on a recognisance release order after 12 months.
  • 7 May 2021 —

    Nicolas v The Queen [2021] NSWCCA 89 — drug importation offence — appeal against sentence — guilty plea — Xiao error

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    The offender was sentenced following pleading guilty to 1 count of importing 3 quantities of a border-controlled drug, each being a commercial quantity of methylamphetamine contrary to ss 307.1 and 311.13 of the Commonwealth Criminal Code. The offence related to 20.2kg of of methylamphetamine. Original sentence imposed 15 years imprisonment with a 10 year non-parole period. Additional offences taken into account under s 16BA. The offender appealed on the basis that the sentencing judge did not have regard to the utilitarian value of their guilty plea.  

    Guilty Plea: Sentence was handed down prior to the decision in Xiao. Offender’s progress as to rehabilitation in over 5 years in custody is mixed. Prospects of rehabilitation remain guarded but are advanced from what they were at time of sentence. Rolling of three charges into one count provides some explanation as to why the plea was entered at such a late stage. Although the plea was entered at the eleventh hour, it nevertheless avoided a trial which is a significant saving of resources. Discount in the order of 10% was warranted to reflect the utilitarian considerations of the plea.  

    Leave to appeal granted. Appeal allowed. Original sentence quashed and offender sentenced to 14 years and 5 months imprisonment with a 9 year non-parole period.
  • 30 April 2021 —

    R v Hartley-Kennett [2021] ACTSC 88 — child exploitation offences — sentence — nature and circumstances — mental condition

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    The offender was sentenced following pleas of guilty to 1 count of using a carriage service to solicit child abuse material contrary to s 474.22 of the Commonwealth Criminal Code and 1 count of using a carriage service to procure a person under 16 years of age to engage in sexual activity contrary to s 474.26(1) of the Commonwealth Criminal Code.  

    Nature and Circumstances: Offender was aware purported victim was only 14 years old. Tenor of messages increased in intensity over time and progressively focused on procurement for sexual activity. Offender sought to normalise conduct and break down any resistance from victim in communication with them. Offender was arrested at arranged meeting place where they were to meet the victim which was a relatively secluded location.  

    Mental Condition: Offender was experiencing subclinical symptoms of depression and at times anxiety. However, psychologist did not believe these contributed to the offending. It was nevertheless possible that from time to time, the offender was cognitively affected to the point where judgment was impaired, but psychologist did not believe that this was the case with respect to offending. Psychologist did not believe that symptoms would have made offender disinhibited or impaired ability to appreciate wrongfulness of conduct. Condition will make offender somewhat more vulnerable in custody. There is a risk offender’s mental state will deteriorate in custody, possibly to the stage where offender may become a suicide risk.  

    Offender sentenced to 13 months imprisonment to be released on recognizance release order after 6 months.
  • 30 April 2021 —

    R v Maraivalu [2021] NSWDC 237 — drug importation offence — sentence — nature and circumstances — mental condition — contrition

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    The offender was sentenced following a plea of guilty to 1 count of attempting to possess a border controlled drug being not less than the commercial quantity contrary to the Commonwealth Criminal Code. The offence related to 7.17kg of pure methamphetamine.  

    Nature and Circumstances: Involvement in illegal drug trafficking at any level will in most cases require very significant penalties. This applies even when a person is low in the hierarchy as the offender is because without them, prepared to carry out important tasks, drug trafficking could not take place. Offender’s role was clearly limited and they were tasked with risky job of actually collecting the package from the post office and taking it to their home. In collecting the package the offender was clearly aware that they were participating in a criminal enterprise. The offender is only to be sentenced for what they actually did. The offender performed a limited but important role in acting as the authorised agent. While the offender knew that the documents they presented to the post office were false, it is not beyond reasonable doubt that they were responsible for preparing those documents. Offender carried out role with expectation that they would receive some type of financial gain.  

    Mental Condition: At time of offending, offender was affected by major depressive disorder, generalised anxiety disorder and alcohol use disorder. There was no causal link between the offending and any suggested psychological condition. Any psychological condition was not such as to reduce the offender’s moral culpability which must be regarded as at least moderate. This does not appear to be a case where a custodial term will impact on the offender more adversely than it would a person with ongoing psychological conditions of a serious nature.  

    Contrition: Offender tended to minimise involvement in offence and attributed most of the blame to a friend they said they were assisting. Offender said alcohol impaired decision-making and that they wished to address their alcohol use in the future. Offender expressed some regret for offence and an understanding of potential impact on the community. Offender has expressed limited remorse.  

    Offender sentenced to 8 years and 9 months imprisonment with a non-parole period of 4 years and 6 months.
  • 29 April 2021 —

    CDPP v Balagar [2021] VCC 427 — drug importation offence — sentence — nature and circumstances — deportation — mental condition

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    The offender was sentenced following a plea of guilty for 1 count of attempting to possess a marketable quantity of an unlawfully imported border controlled drug, namely opium, contrary to ss 11.1(1) and 307.1(1) of the Commonwealth Criminal Code. Offence related to 10.83kg of of pure opium.  

    Nature and Circumstances: Estimated street value of the drugs was between $309,887.50 and $743,730.  Offender was active and persistent in seeking to take possession of the consignment. The charge is one of attempt not because of anything the offender left undone but because the drug had been replaced by an inert substance. Offender was a willing participant in the offending and participation was motivated by financial gain rather than by any threats to the offender or their family. There was no evidence offender was planning to sell the drug themselves, rather they took possession in the expectation that the drug would be collected by other people.  

    Deportation: Offender is currently an unlawful non-citizen and has not had a visa since February 2018. After offender is released from custody, a decision will be made about whether offender will be placed into detention pending a decision as to whether or not to deport them. While offender does not presently seem to appreciate the risk they face of not being permitted to stay in Australia, once offender does so understand, this will weigh on their mind.  

    Mental Condition: Mental state means prison has and will weigh more heavily on the offender than a person without those symptoms. Evidence does not establish that there is a serious risk of imprisonment having a significant adverse effect on offender’s mental health. On the contrary, offender has been doing quite well in custody, has sought and received mental health treatment and is engaged in study.  

    Offender sentenced to 7 years and 6 months imprisonment with a 5 year and 6 month non-parole period.
  • 28 April 2021 —

    R v Cusack [2021] ACTSC 75 — child exploitation offences — sentence — nature and circumstances — antecedents — mental condition

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    The offender was sentenced following pleas of guilty to 1 count of possession of child abuse material accessed using a carriage service to obtain the child abuse material contrary to s 474.22A(1) of the Commonwealth Criminal Code, 1 count of using a carriage service to access child abuse material contrary to s 474.19(1) of the Commonwealth Criminal Code and 1 count of using a carriage service to access child abuse material contrary to s 474.22(1) of the Commonwealth Criminal Code.  

    Nature and Circumstances: The same files are common to each of the offences. The essential difference between the possession charge and the use of a carriage service charges are that the latter refer to accessing the material while the first relates to the keeping of the material. The length of time covered by the access charges is almost 5 years. The number of files and their content render the three offences to be well above medium objective seriousness. It must be appreciated that every time one of these images is downloaded its purveyor or producer is encouraged to abuse another child. The damage to the children would not have ceased when the abuse stopped. In some cases it will affect the whole of the child’s life. It is not enough to say that offender did not themselves physically abuse any child.  

    Antecedents: Court is confronted with a person of good upbringing, a sound education and steady employment. In other words, a person who is otherwise a decent and contributing member to society. But then this person delves into child abuse material and destroys practically all positive ingredients of the past.  

    Mental Condition: Clinical psychologist says offender’s judgment was severely compromised by depression and that access to the illegal material was a method of self-soothing and as a distraction from their depressive mood. Sentencing judge found the concept of watching the sexual abuse of children as a salve to a depressed mood to be somewhat difficult to understand. Sentencing judge was bound to respect the opinion of the clinical psychologist in particular where there is no opposing opinion.  

    Offender sentenced to 2 years imprisonment to be released on recognizance release order after 2 months.
  • 28 April 2021 —

    Aboud v The Queen [2021] NSWCCA 77 — child exploitation offences — appeal against sentence — guilty plea — Xiao error — nature and circumstances

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    The offender was sentenced following pleas of guilty to 1 count of using a carriage service to menace, harass or offend contrary to s 474.1791) of the Commonwealth Criminal Code, 1 count of using a carriage service to groom a person under the age of 16 years for sexual activity contrary to s 474.27(1) of the Commonwealth Criminal Code, 1 count of using a carriage service to procure a person under the age of 16 years for sexual activity contrary to s 474.26(1) of the Commonwealth Criminal Code. Original sentence imposed 7 years imprisonment with a 5 year and 3 month non-parole period. The offender appealed on the basis that the sentencing judge erred in the manner in which they dealt with the offender’s pleas of guilty.  

    Guilty Plea: Offender was sentenced prior to the decision in Xiao. There is no dispute that offender’s pleas were entered at the earliest possible opportunity. Sentencing judge did not specify the discount they applied but there is nothing to suggest that the discount should have been anything less than 25%. In circumstances where the sentencing judge made no reference to the utilitarian value of the plea, the only available conclusion is that the sentencing judge did not take that matter into account.  

    Delay: Delay between offender’s interview with police and bringing of charges was approximately four years. While reasons for delay are entirely unexplained, it was not the fault of the offender. There is no evidence of any stress or interruption in rehabilitation as consequence of delay. Relevance in the present case is that offender did not offend during that four year period.  
    Nature and Circumstances: Where there is a multiplicity of offences, it is important that the task of assessing the nature and circumstances of the offending is not obscured by a broad brush approach. The offending was consistent, premediated, disturbingly predatory and unequivocally manipulative. It had the clear potential to do great damage to the victims. Courts have a responsibility to reflect all of those factors by imposing sentences of appropriate severity. Objective seriousness of offending is such that no lesser sentence is warranted. The non-parole period imposed reflects the minimum period of actual incarceration which is warranted having regard to all the circumstances of the case.  

    Leave to appeal granted. Appeal dismissed.
  • 27 April 2021 —

    R v Barber [2021] ACTSC 78 — child exploitation offences — sentence — nature and circumstances — specific deterrence — mental condition — rehabilitation

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    The offender was sentenced following pleas of guilty to 2 counts of using a carriage service to access child pornography material contrary to s 474.19(1)(i) of the Commonwealth Criminal Code, 2 counts of using a carriage service to access child abuse material contrary to s 474.22(a)(i) of the Commonwealth Criminal Code and 2 counts of possessing or controlling child abuse material obtained or accessed using a carriage service contrary to s 474.22A of the Commonwealth Criminal Code.  

    Nature and Circumstances: Count 4 involved possession of more than 4500 files across five devices. The other charges involved significantly less material. In relation to Count 4, approximately one quarter of the files contained Category 4 or 5 imagery and a significant quantity of category 2 and 3 material. There is no suggestion that material was possessed for purpose of sale or further distribution. Absence of any other motive and repeated offending establishes that the motive for offending was sexual gratification. Material depicted approximately 100 different victims. Count 4 was offence of substantial objective seriousness and other offences were of significant objective seriousness.  

    Specific Deterrence: Offender acknowledged that they were concerned they may be unable to manage temptation when in the community and expressed an interest in attending sex offender treatment program. Offender described behaviour as an addiction that overwhelmed common sense and morality. Offender displayed insight about impact of their behaviour on child victims and the role such offending played in perpetrating victim abuse, but less insight into the reasons for offending conduct. Offender said they had no desire to have actual physical contact with young people but had restricted their movements in the community to minimise possible interaction with young people.  

    Mental Condition: Offender suffers from depression and substance abuse disorders and such conditions may have reduced their impulse control. There is an interplay between offender’s generally disappointing and lonely life and the conditions of major depression and substance abuse disorder. These factors explain the commission offence but do not significantly reduce moral culpability.  

    Rehabilitation: Risk level was assessed by psychologist and author of pre-sentence report but sentencing judge did not place substantial weight on those assessments as they are notoriously unreliable. The offender committed further offences while on conditional liberty which suggests that prospects of rehabilitation are quite uncertain. Offender appears to be an intelligent person who, contrary to comments made in some of the reports, does display significant insight into their situation.  

    Offender sentenced to 2 years and 6 months imprisonment to be released on a recognisance release order after 15 months.
  • 27 April 2021 —

    CDPP v Locke [2021] VCC 414 — child exploitation offences — sentence — nature and circumstances — antecedents

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    The offender was sentenced following pleas of guilty to 4 counts of using a carriage service to transmit child abuse material contrary to s 474.22(1) of the Commonwealth Criminal Code and 1 count of possession of child abuse material obtained or accessed using a carriage service contrary to s 474.22A(1) of the Commonwealth Criminal Code.  

    Nature and Circumstances: Offender’s transmission of the two images was limited. The written description of acts of child sexual abuse were in a lower category on the scale of offending. The transmission was to adults and only adults. The conversations tend to disgust; they are offensive to read. While no actual children were abused in the offending the subject of the textual event, the legislation is directed at deterring the transmission and production of even this material. It is difficult to assess the impact on victims where the offending is substantially the creation of images, with words, in relatively private circumstances. It is perhaps only true to say that offending contributes, to some degree, to broader creation of distorted view of reality where children are viewed as appropriate sexual partners for adults. Where images are of real children, they must live with the fact that these images can now be traded, swapped and transmitted exponentially.  

    Antecedents: Offender endured ongoing sexual abuse as a child including in an orphanage, and by their stepfather. Offender began drinking alcohol from 12 years old and consumption increased with age. Offender has been diagnosed with an alcohol use disorder. Psychologist outlined how sexual abuse endured as a young person might have led to development of deviant sexual interests as an adult. Childhood abuse also contributed to offender being targeted for sexual abuse by stranger males in subsequent life. Early abusive relationships and later sexual experience as an adult appear to be entwined. The child abuse offender endured in their history left is mark upon them and the effect of that does not diminish over time.  

    Offender sentenced to 14 months imprisonment to be released forthwith on recognizance release order.
  • 22 April 2021 —

    DPP v Ngo [2021] VCC 466 — drug importation offences — sentence — nature and circumstances — physical condition

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    The offender was sentenced following pleas of guilty to 1 count of importing a commercial quantity of a border controlled drug namely heroin, 1 count of trafficking a commercial quantity of a controlled drug namely heroin, 1 count of trafficking a commercial quantity of a controlled drug namely methamphetamine. Count 1 related to 3225.5g of pure heroin. Count 2 related to 1610.9g of pure heroin. Count 3 related to 4827.8g of pure methamphetamine.  

    Nature and Circumstances: Offender played important role in importation and trafficking of large quantities of heroin and methamphetamine. Offender was of significant standing in Melbourne-based arm of the syndicate which imported large quantities of heroin into Australia. As a freelancer, offender acted as broker between seller, co-offender and the buyer. Offender was involved in delivering methamphetamine and collection of payment. Wholesale value of imported heroin was around $600,000 - $800,000. Wholesale value of methamphetamine was more than $700,000. Offender was very aware of risk of detection but not deterred by it. Offender's primary motivation was to profit from significant commissions made. Offender’s statement that they in part offended to get money for gambling does not moderate culpability. Offender’s moral culpability lower than Michelle Tran’s but higher than other co-offenders  

    Physical Condition: Offender has pancreatic cancer, is a diabetic and insulin dependent. While personal factors carry less weight for offending of this type, sentences were moderated to take into account limited criminal record, poor physical and mental health, that prison will be harder for offender than a person in normal health and there is an appreciable risk anxiety and depression, related to poor physical health will be made worse in prison.  

    Offender sentenced to 13 years and 9 months imprisonment with a 9 year and 9 month non-parole period.
  • 19 April 2021 —

    DPP v Mokdissi [2021] VCC 440 — child exploitation offences — sentence — nature and circumstances — specific deterrence

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    The offender was charged following pleas of guilty to 15 counts of using a carriage service for sexual activity with a person under 16 years of age, contrary to s 474.25A(1) of the Commonwealth Criminal Code, 1 count of using a carriage service to groom a person believed to be under 16 years of age for sexual activity contrary to s 474.27(1) of the Commonwealth Criminal Code and 3 counts of using a carriage service to transmit indecent communication to a person under 16 years contrary to s 474.27A(1) of the Commonwealth Criminal Code. Additional State offences were taken into account. Additional Commonwealth offences were taken into account under s 16BA.  

    Nature and Circumstances: Offending is objectively very serious. There is a major public interest in protecting children from sexual exploitation and abuse. Offending comprised a calculated course of manipulation and exploitation of vulnerable children for own sexual gratification. The existence of cyber space provides a place where children can be manipulated into inappropriate sexual behaviours beyond their maturity. While there are marginal differences in precise detail of factual circumstances in the offences for sexual activity with a person under 16, the gravity of offending is essentially the same. Production of child abuse material is serious because recordings can survive long after the live sexual activity itself, have the potential to be traded and contribute to child pornography market, and may provide ongoing harm to a victim by potential exposure to others. Volume of material of child abuse material can be considered as being at low range of culpability. Whilst absence of significant material in high levels of categorisation does not minimise the objective gravity of possession, the assessment of the material is to be considered in the context of the offending as a whole. Offender’s manipulation in grooming offence extended to telling victim that they wanted to kiss her and how they would kiss her. There is no presumption of harm as victim was undercover police operative, but the offending is not in itself any less serious because of offender’s belief in whom they were communicating with.  

    Specific Deterrence: Notwithstanding positive personal characteristics, specific deterrence is not eliminated but may be moderated. Moral culpability is high. Offender is well educated, had benefit of a close, loving and supporting family and knew what they were doing was wrong and could destroy their life. When offender was challenged on one occasion by a child, offender said they did not care. Whilst period of offending was relatively short, it occurred frequently and persistently. Offender worked at a primary school and undoubtedly would have been well aware of the vulnerability of children and the need to protect them, including from themselves.  

    Offender sentenced to 5 years and 6 months imprisonment with a 3 year non-parole period.
  • 16 April 2021 —

    Lu v The Queen; Huang v The Queen [2021] NSWCCA 68 — drug importation offences —appeal against sentence — guilty plea — parity

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    The offenders were convicted following pleas of guilty to attempting to possess a commercial quantity of a border controlled drug contrary to sections 11.1.(1) and 307.5(1) of the Commonwealth Criminal Code. Offence related to 33.572 kilograms of pure methamphetamine. Original sentence imposed 10 years imprisonment with a 6 year non-parole period. Offenders appealed on the ground that sentencing judge failed to take into account the utilitarian value of their pleas of guilty.

    Guilty Plea: Sentence was handed down prior to decision in Xiao.  Sentencing judge referred to DPP (Cth) v Gow which was supported in Xiao v R. Sentencing decision for present offenders differs from other appeals which rely on Xiao error. Sentencing error has been demonstrated on what may be a relatively technical basis. Sentencing judge calculated 25% discount by reference to mixture of objective and subjective factors. In effect, sentencing judge included under one quantified umbrella factors which bore upon guilty plea and contrition. This is not a case were sentencing judge excluded utilitarian value of pleas from consideration. It is appropriate to retain a 25% discount to reflect utilitarian plea of guilty.

    Parity: It is appropriate to pass the same sentence of imprisonment for each offender. Although, as sentencing judge found, there are shades of difference between the two, the appropriate sentencing outcome ought see imposition of the same sentence.

    Leave to appeal granted. Appeal dismissed.
  • 16 April 2021 —

    Ghazzawy v The Queen [2021] NSWCCA 70 — terrorism offence — appeal against sentence — guilty plea — Xiao error — rehabilitation

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    The offender was convicted following a plea of guilty to intentionally making a document connected with the preparation of a terrorist act contrary to section 101.5(1) of the Commonwealth Criminal Code. Original sentence imposed 8 years and 6 months imprisonment with a 6 year and 4 month non-parole period. The offender appealed on grounds that the sentencing judge erred by failing to regard the utilitarian value of the plea of guilty and erred in backdating the commencement of the offender’s sentence to 15 December 2015.

    Guilty Plea: Sentence was handed down prior to decision in Xiao. Sentencing judge expressly failed to take into account the offender’s entitlement to a discount for the utilitarian value of their plea of guilty. In relation to utilitarian value of plea, regard can only be had to objective benefits which have been brought about by the plea. Plea was at an early point in time, although not at the earliest point. Plea saved community the cost of a substantial trial. Negotiations had been taking place for considerable period of time. Discount of 17.5% should be applied to the sentence.

    Rehabilitation: There have been some rather shallow improvements in the offender’s demeanour and beliefs since being in custody. There has not been any significant change in the offender’s beliefs. Matters of concern to the sentencing judge continue to be matters of concern i.e. the perception that Islam was under attack and a sense of grievance which continues to affect and influence offender.

    Leave to appeal granted. Appeal granted. Sentence quashed and offender sentenced to 8 years imprisonment with 6 year non-parole period.
  • 12 April 2021 —

    DPP v Kit [2021] VCC 421 — migration offences  — sentence — nature and circumstances — delay

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    The offender was sentenced following pleas of guilty to 3 counts of recklessly allowing an unlawful non-citizen to work contrary to section 245AB(1) of the Migration Act 1958, 1 count of recklessly allowing a lawful non-citizen to work in breach of a work-related condition contrary to section 245AC(1) of the Migration Act 1958 and 1 count of dealing with proceeds of crime worth $100,000 or more contrary to section 400.4(2) of the Commonwealth Criminal Code.

    Nature and Circumstances: Principal object of illegal scheme was to obtain workers to enable the vegetables to be picked and packed for market. This does not suggest that offending was not serious. Offender did not know precise number of people they allowed to work. Offender was aware they were participating in an arrangement for performance of work by a substantial number of workers whilst reckless as to their entitlement to work. Offender was aware of a substantial risk that the workers who were allowed to work were doing so illegally and unjustifiably took the risk in the circumstances known to them. Offender’s role in the proceeds of crime charge was also significant. The proceeds were paid to the offender, who calculated the payment to each worker and caused the distribution. The proceeds of over $300,000 were substantial, however the offending was not the most serious by quantum or state of mind. Offender was reckless as to the fact that the money received was proceeds of crime.

    Delay: Four years passed between sentence and record of interview. Charges were filed two years after interview in December 2018. There was some delay for a committal for Migration Act offences. There was a delay in filing charges and a further delay brought about by COVID-19 pandemic lockdown and its effect on the work of the courts. Delay between charges being filed and committal cannot be taken into account as offender chose to cross-examine witnesses on Migration Act matters.

    Offender fined $40,000 and sentenced to 14 months imprisonment, to be released after 5 months on a recognizance release order.
  • 9 April 2021 —

    R v Appleby [2021] ACTSC 55 — child exploitation offences — sentence — nature and circumstances — remorse

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    The offender was sentenced following a plea of guilty to 2 counts of possessing or controlling child abuse contrary to s 474.22A of the Commonwealth Criminal Code and 1 count of using a carriage service to access child abuse material contrary to s 474.22(1) of the Commonwealth Criminal Code. Offender was sentenced for additional State offences.  

    Nature and Circumstances: Offender accessed and possessed a significant quantity of child abuse material, the content of which is clearly of significant gravity. The likely number of individual unique victims is no less than 600 children, ranging in age from about 2 months to 15 years. The offender did not make material available for sale or further distribution or engage in the offending for profit. The absence of these factors does not mitigate the offending. Offences are serious.  

    Remorse: Offender denied being sexually attracted to children and denied that actions were premeditated, despite knowing that actions were unlawful. Offender displayed limited victim empathy and referred to the child abuse material as being abstract in nature. Substantial weight is not ascribed to the remorse expressed. The PSR and two reports reveal an inconsistent level of remorse and insight.  

    Offender sentenced to 33 months imprisonment to be released on 2 year recognisance release order after 18 months.
  • 9 April 2021 —

    Huggett v The Queen [2021] NSWCCA 62 — child exploitation offences — appeal against sentence — co-operation — cumulative and concurrent sentences — manifest excess

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    The offender was sentenced following a plea of guilty of one count of using a carriage service to access child pornography contrary to s 474.19(1)(a)(i) of the Commonwealth Criminal Code. The original sentence imposed 3 years and 10 months imprisonment with a 2 year and 6 month non-parole period. Offender was sentenced for additional State offences. The offender appealed on the basis that the sentencing judge erred in failing to give effect to offender’s co-operation with authorities and the sentence was manifestly excessive.  

    Co-operation: Offender volunteered to police that further child abuse material was to be found on their laptop computer. Assessment of subjective circumstances, including assistance to authorities and issue of contrition and remorse, was complicated in this case by offender’s protracted attempts to blame ex-partner for offences and to advance, but not press, application for leave to withdraw pleas. Despite initial assistance to investigating police, including volunteering that the laptop computer contained child abuse material, offender thereafter for a period of years fluctuated and vacillated in the Courts. It is reasonable to approach the issue upon the basis that there was likely to be further investigation by police including, if necessary, the execution of a search warrant to determine whether child abuse material was contained on any other electronic device. This is the common if not invariable scenario emerging in police investigations of child abuse material offences. Any assistance provided by offender concerning presence of child abuse material on laptop did not advance position for purpose of s 16A(2)(j) Crimes Act 1914 (Cth).  

    Cumulative and Concurrent Sentences: The maximum penalty for the Commonwealth offence was imprisonment for 15 years. The sentence of 3 years and 4 months with a non-parole period of two years was not manifestly excessive. There was partial accumulation related solely to the State offences. One of the State offences involved the same 88 images as the s 474.19(1) offence however different criminality was involved in the Commonwealth offence. The total effective sentence paid due regard to different criminality involved in the three offences together with areas of overlap which bore upon issues of concurrency, accumulation and totality.

    Leave to appeal granted. Appeal dismissed.
  • 9 April 2021 —

    Hayward v The Queen (Cth) [2021] NSWCCA 63 — fraud offences — appeal against sentence — guilty plea — Xiao error — rehabilitation.

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    The offender was sentenced following pleas of guilty to 17 counts of uttering counterfeit money contrary to s 7(1) of the Crimes (Currency) Act 1981 (Cth), 21 counts of producing a false passport to a designated reporting agency contrary to s 137(1) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) and 1 count of possession of counterfeit money contrary to s 9 of the Crimes (Currency) Act 1981 (Cth). The original sentence imposed 10 years and 6 months imprisonment with a 7 year non-parole period. Additional offences were taken into account under s 16BA. The offender appealed on the basis that the sentencing judge failed to take into account the utilitarian value of the offender’s plea.  

    Guilty Plea: Sentence was handed down prior to decision in Xiao. There was no implicit recognition by the sentencing judge of the utilitarian value of the offender’s guilty pleas. It is apparent from the number of charges on the indictment and the s 16BA Schedule that had the offender defended the matters, the trial would have proceeded for some weeks and involved a level of complexity. This bears upon the utilitarian value of their guilty pleas. A 25% discount should be extended to the offender for the utilitarian value of their guilty pleas. The sentencing judge took into account aspects of the offender’s guilty pleas in an unquantified way and in the offender’s favour on sentence. It is necessary for the Court not to double count factors in the offender’s favour on sentence.  

    Rehabilitation: Sentencing judge considered offender’s prospects of rehabilitation were poor. Offender has demonstrated established history of dishonest conduct so that there remains risk of reoffending once released into the community. Offender’s good behaviour in prison may be an unhelpful indicator concerning prospects of rehabilitation. Offender has demonstrated a propensity for criminal deception of others and is a recidivist fraudster. It does not appear that there are criminogenic factors in offender’s background which they have in some way brought under control in custody.  

    Leave to appeal against sentence granted. Appeal allowed and sentence quashed. Offender sentenced to 9 years and 6 months imprisonment with a 6 year and 4 month non-parole period.
  • 7 April 2021 —

    DPP v Grabovic [2021] VCC 394 — dishonesty offence — sentence —nature and circumstances — physical condition

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    The offender was sentenced following a plea of guilty to 1 count of dishonestly causing a risk of loss contrary to s 135.1(5) of the Commonwealth Criminal Code. Offence related to 344kg of tobacco.  

    Nature and Circumstances: Excise rate on tobacco was $916.72 per kilogram. Gravamen of offending was the risk of a loss to the Commonwealth revenue of $315,351.68. The commercial nature of offending elevates seriousness beyond the lower range, as does the substantial sum which enterprise put at risk. Whilst this was serious offending it was not as serious an example of this offence as is sometimes seen.  

    Physical Condition: Offender has chronic health condition including kidney failure, diabetes and obesity. Offender’s current active health issues include maintenance of kidney transplant, management of diabetes and blood pressure, preventative health measures. If kidney transplant fails, offender will require dialysis and consideration of another transplant. Offender’s chronic and debilitating health condition substantially undermines their quality of life.  

    Offender sentenced to 4 months imprisonment to be released forthwith on a Recognisance Release Order.
  • 1 April 2021 —

    R v AA [2021] NSWDC 112 — drug importation offences — sentence — nature and circumstances — cooperation — specific deterrence — mental condition

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    The offender was sentenced following a plea of guilty of 1 count of importing a commercial quantity of a border controlled drug contrary to s 307.1(1) of the Commonwealth Criminal Code. Offence relates to 24.6 litres of gamma-butyrolactone. Offender was sentenced for additional State offences. Additional offences were taken into account under s 16AB.  

    Nature and Circumstances: Offender imported well in excess of the minimum commercial quantity. Value of the drug imported is believed to be approximately $200 which is a relatively modest amount in comparison to value of commercial quantities of other illicit substances. Offending occurred whilst offender was on a bond, the financial reward was small, there was no evidence of a lavish lifestyle and offending was relatively unsophisticated. Objective gravity lies somewhere between low and mid-range of objective seriousness.  

    Cooperation: Offender provided assistance to law enforcement. Assistance was deemed to be truthful, reliable and timely. Offender has provided and is committed to continue providing very valuable assistance. 20% discount allowed for past assistance and 5% discount for assistance in the future.  

    Specific Deterrence: Whilst offender has been incarcerated they have suffered relative isolation and significant withdrawal effects from drug use, and has been the subject of two incidents of assault. Offender’s conduct cannot be explained as momentary or impulsive lapse in judgment. Offender is still relatively young which militates in favour of rehabilitation.  

    Mental Condition: Offender had ten-year period of problematic substance abuse. Offender’s abuse of both substance is to be linked to offender’s feelings of low self-worth and emotional disfunction arising from offender’s violent upbringing. Disadvantaged background can be taken into account to reduce moral culpability, and is linked to offender’s addiction. Offender grew up in very violent household which they left as a teenager. Offender appears to have untreated, undiagnosed mental health issues. The effect of the offender’s disadvantage do not diminish with the passage of time and should be given full weight in the sentencing exercise. This is not to say that the offender bears no moral culpability.  

    Offender sentenced to 3 years imprisonment with an 18 month non-parole period.
  • 31 March 2021 —

    DPP v Derby [2021] VCC 386 child exploitation offence sentence — mental condition — nature and circumstances — rehabilitation

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    The offender was sentenced following a plea of guilty to 1 count of using a carriage service to procure a person believed to be under 16 years of age contrary to s 474.26(1) of the Commonwealth Criminal Code, 1 count of possessing or controlling child abuse material obtained or accessed using a carriage service contrary to s 474.22A(1) of the Commonwealth Criminal Code and 1 count of using a carriage service to access child abuse material contrary to s 474.22(1) of the Commonwealth Criminal Code. Offender sentenced for additional State offences. Additional offences taken into account pursuant to s 16BA.  

    Mental Condition: Offender was subject to emotionally abusive behaviour from mother and 3 sexual assaults perpetrated on them by their sister. Offender has long suffered from poor mental health, though was only diagnosed with depression 5 years ago. Since arrest mental health has further deteriorated. Offender has experienced suicidal thoughts and been admitted to hospital.  

    Nature and Circumstances: Offence was committed against an actual 13 year old victim until the intervention of the complainant’s parents. Child involved was also the daughter of people who believed they knew and could trust the offender. Case involves a gross breach of trust. Methods offender engaged to pursue aim of procuring caused significant damage in and of themselves. Offender knew actions would cause harm to the victim. Offender was in possession of a significant amount of child exploitation material. Offender engaged in offending against a child that was persistent in nature and disturbing in content. Offending must also be viewed in context of possession of child exploitation materials, evidence that offender accessed similar materials as far back as 2018, and admission to police that they may have, but couldn’t recall, sending similar material to other children.  

    Rehabilitation: Offender’s paraphilia sexual interests together with entrenched nature of online activities are deeply concerning. Offending that offender has engaged in is one which requires little infrastructure, is difficult to detect and can be committed from anywhere where offender has access to a device and internet. There are few structural impediments that can be created to prevent offending in a similar way in the future beyond the professional treatment offender is receiving. Offender has done all that could reasonably be hoped of them in relation to engagement with appropriate assessment and treatment. Prospects of rehabilitation will depend on capacity to access appropriate treatment, offender’s continued willingness to engage in that treatment and then for that treatment to be successful. Some caution in relation to prospects of rehabilitation is warranted.  

    Offender sentenced to 3 years and 6 months imprisonment with a 2 year and 6 month non-parole period.
  • 26 March 2021 —

    R v Entwhistle [2021] NSWDC 159 — dishonesty offence — sentence — guilty plea — nature and circumstances — mental condition — victim of offence

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    The offender was sentenced following a plea of guilty to engaging in conduct in the exercise of their duties as Commonwealth public official and did so with the intention of dishonestly obtaining a benefit for themselves and another person contrary to s 142.2(1) of the Commonwealth Criminal Code.  

    Guilty Plea: Guilty plea was not early. There was a tried scheduled to take place that did not need to proceed because of plea bargaining. If the NSW statutory scheme applied, discount of no more than 10% would be allowed. Discount would probably only be 5%. Matter was listed for trial during a period when jury trials were lengthy and limited because of COVID 19. Trial would have been lengthy. Discount of 15% allowed.  

    Nature and Circumstances: Offender worked for Department of Agriculture and Water Resources (DAWR). Offender made 220 unauthorised accesses to restricted data in the DAWR computer systems. Accesses were made to keep track of shipments for Nano and to gain access to records of competitor’s and supplier’s consignments and enable the offender to research prices of material and shipping used for the bringing of consignments used for the benefit of Nano. Offender tracked Nano shipments and shipments of competitors for the purpose of giving financial and business advantage to Nano and its directors. That is the benefit given to others. There was an indirect benefit accruing to the offender because they expected ultimately to receive some income or financial advantage from Nano or its directors although none was actually ever paid. Offending was serious and over a prolonged period of 18 months. Offender appears to have realised months prior to becoming aware that they were under suspicion that they were offending and wanted to give it up but was driven perhaps for financial reasons to stay the course to obtain a financial benefit so that wife could reduce her working hours.  

    Mental Condition: Psychological report is of no assistance. Offender has been in recent times suffering from anxiety and depression. Anyone standing for sentence in this Court who is not anxious and depressed would be abnormal. The offender’s work stress was consequence of perception of being unfairly treated by boss that led to offender being moved within the Department. There was no suggestion that a depressive illness or any psychiatric problem led the offender to doing what they did, rather what the offender was doing may have caused them stress.  

    Victim of Offence: There is no actual victim. There is the putative damage to the competitors of Nano and damage that offender has brought to the integrity of our system of government. There is no method to allow the offender to recompense the Commonwealth for their misdoing.  

    Offender sentenced to imprisonment for 1 year and 11 months to be served by way of ICO. Offender must complete 500 hours of community service
  • 24 March 2021 —

    R v Razali [2021] NSWDC 167 — taxation offence — sentence — nature and circumstances — parity

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    The offender was sentenced following a plea of guilty to 1 count of producing tobacco leaf of 500kg or more contrary to s 308-125 of the Taxation Administration Act 1953 (Cth).  

    Nature and Circumstances: Offender and co-offender were not principles in the operation. Offender has been on tobacco leaf farm for about two weeks and was being paid $170 a day. Excise foregone on the tobacco at the property was around $3.1 million.  

    Parity: Only distinguishing factor between offender and co-offender was offender’s asserted lack of remorse on the basis that they failed to engage in the the Sentence Assessment process. Offender has already served more than 3 months in custody while co-offender served 3 months in custody.  

    Offender sentenced to recognisance release order for 12 months.
  • 19 March 2021 —

    R v Pink [2021] NSWDC 47 — drug importation offence — sentence — nature and circumstances — physical condition — rehabilitation — deportation

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    The offender was sentenced following a plea of guilty to 1 count of attempting to possess a marketable quantity of unlawful import border-controlled drug contrary to s 307.2(1), 311.1 with s 11.1 of the Commonwealth Criminal Code. The offence related to 854.4g of pure ketamine. Offender was sentenced for additional State offences.  

    Nature and Circumstances: Offending was objectively serious. Offender played an integral role in offending, first, by obtaining agreement of a co-worker to provide an address for delivery of the consignment of border-controlled drugs. Secondly, offender prepared false authority for collection of consignments from the post office and was involved in arrangements relating to collection of border-controlled drugs from the post office. While co-offender entered post office and collected consignments, offender was seated in car nearby and was immediately arrested by police. Offender played active role as facilitator of attempted possession and was not a collector. By comparison to other entrepreneurial operations of importing drugs, this operation was relatively unsophisticated. Offender was a trusted intermediary. Offender was reckless as to the consignment being any border-controlled drug.  

    Physical Condition: Offender has had number of seizures. Diagnosis remains provisional. Offender suffers serious medical condition. Given the uncertainty surrounding diagnosis and unavailability of immediate testing and treatment, time on remand has been stressful. Any sentence imposed will be served in conditions more onerous for the offender than the general prison population.  

    Rehabilitation and Deportation: Offender has good prospects of rehabilitation. Assistance will hopefully be provided in terms of drug and alcohol rehabilitation courses while in custody. Provided offender does not relapse into drug abuse, offender presents as low risk of re-offending following release. Upon release offender will of course be deported to the UK  

    Offender sentenced to 4 years and 6 months imprisonment with 2 year non-parole period.
  • 18 March 2021 —

    DPP (Cth) v Chuah [2021] VCC 282 — drug importation offences — sentence — nature and circumstances — guilty plea — hardship to offender

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    The offender was sentenced after a plea of guilty of 1 count of attempting to possess a marketable quantity of an unlawfully imported controlled drug contrary to s 11.1(1) and 307.6(1) of the Commonwealth Criminal Code and 1 count of improper possession of a foreign travel document contrary to s 21(4) of the Foreign Passports (Law Enforcement and Security) Act 2005 (Cth). Offence relates to 401 grams of pure methamphetamine. Three further offences taken into account under s16BA Crimes Act 1914 in relation to attempting to possess marketable quantity of unlawfully imported border-controlled drug.  

    Nature and Circumstances: In the absence of specific evidence to the contrary, the common-sense inference should be drawn that offender committed the offence for profit. Inference can be drawn that the offender had a firm understanding of the quantity of the substance that was being imported. Offender had knowledge of, as opposed to being reckless to, the fact that the substance imported was in fact a border-controlled drug. Offending is serious. Offender knew and understood that they were unable to re-enter Australia for a period of not less than three years when they were deported in 2016. Offender entered Australia on a new passport under a false name, blatantly and dishonestly disregarding the prohibition. Offender did not enter Australia with the sole purpose of committing the drug offences.  

    Guilty Plea: Offender admitted to offences pursuant to s 16BA in circumstances where a question remained in relation to the purity of the drugs found in the three other packages. Plea was not made at earliest opportunity but has spared court time and expense.  

    Hardship to Offender: Time in custody has been particularly difficult and isolating. Offender has received no visits from family and friends. Offender has limited English skills and there is a lack of other Cantonese speakers in prison. Offender has been able to speak regularly to family in Malaysia. Significant portion of remand time has been served during COVID-19 restrictions, creating a further burden in addition to isolation.  

    Offender sentenced to 8 years imprisonment with a 4 year and 6-month non-parole period.
  • 18 March 2021 —

    Kahler v The Queen [2021] NSWCCA 40 — drug importation offences — appeal against sentence — antecedents — character — nature and circumstances

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    The offender was sentenced after a plea of guilty to 1 count of importing a marketable quantity of a border-controlled drug contrary to s 307.2(1) of the Commonwealth Criminal Code. The offence related to 808.6g of pure cocaine. The original sentence imposed 8 years and 9 months imprisonment with a 6-year non-parole period. The offender was sentenced for additional state offences. The offender appealed on the basis that the sentencing judge failed to take into account the offender’s lack of prior criminal antecedents and prior good character and that the sentence was manifestly excessive.  

    Antecedents and Character: Sentencing judge made no express reference to lack of prior convictions nor specifically stated that good character was taken into account. It is not clear that failure to refer to these factors should lead to a conclusion that these factors were not given any weight. Given the comprehensive judgment, involving four co-offenders, and that for three of them specific reference was made to good character and presence or absence of criminal record, it should not necessarily be concluded that these matters were ignored in the case of the offender. The strong likelihood is that the sentencing judge did have regard to those matters but omitted to refer to it in the course of what was a complex sentencing exercise involving four co-offenders. Absence of express references took place in relation to offending in circumstances where fact of prior good character is of less weight in the sentencing exercise.  

    Nature and Circumstances: Assessment of objective seriousness of offences is an evaluative task which is classically within the discretion of a sentencing judge. The Court is very slow to intervene and determine such matters for itself.  High Court and this Court have warned against using labels to determine the role or importance of the actions of an offender in relation to drug supply and importation. Part played by the offender was significant. The offender was well aware of the amount of cocaine. This was not an impulsive or isolated offence on the part of the offender but had been repeated on earlier occasions. The part played by the offender was fundamental to the importation. Without offender’s physical actions to bring the drugs into Australia, there would be no importation or subsequent distribution. While the sentence is stern, it is not of a level that would suggest a misapplication of principle.  

    Leave to appeal against sentence refused.
  • 16 March 2021 —

    DPP v Navarro [2021] VCC 264 — child exploitation offences — sentence — nature and circumstances — mental condition — rehabilitation

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    The offender was sentenced following a plea of guilty to 1 count of using a carriage service to access child pornography material contrary to s 474.19(1) of the Commonwealth Criminal Code, 1 count of using a carriage service to solicit child abuse material contrary to s 474.22(1) of the Commonwealth Criminal Code, 1 count of using a carriage service to make child abuse material available contrary to s 474.22 of the Commonwealth Criminal Code, 1 count of using a carriage service to transmit child abuse material contrary to s 474.22(1) of the Commonwealth Criminal Code, 1 count of possessing or controlling child abuse material obtained or accessed using a carriage service contrary to s 474.22A(1) of the Commonwealth Criminal Code.  

    Nature and Circumstances: Offending was perpetrated using an application that allowed offender to maintain anonymity. Offender’s involvements in exchange of child abuse material contributed to the market in that material, which fuels the victimisation of the children who are created to exploit it.  

    Mental Condition: Offender’s breakdown of marriage and underlying psychological vulnerabilities provide some context for offending, but it must be emphasised that there can be no justification for offending as antithetical to human decency as this offending is.  

    Rehabilitation: Offender has much work to do with respect to rehabilitation. In addition to undertaking sexual offence treatment offender will need to deal with alcohol abuse and obtain psychological assistance with respect to anxiety. Offender is motivated and prospects are therefore reasonable.  

    Offender sentenced to 4 years imprisonment with a 2 year and 3 month non-parole period.
  • 15 March 2021 —

    R v Shahudin [2021] NSWDC 163 — taxation offences — sentence —nature and circumstances — deportation

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    The offender was sentenced following a plea of guilty of 1 count of producing tobacco leaf of 500 kilograms or above contrary to s 308-125 of the Taxation Administration Act 1953 (Cth). Offence related to more than 2000kg of tobacco leaf.  

    Nature and Circumstances: Offender was offered a job through a person described as an ‘agent’ on a WhatsApp forum. Job involved offender working on a tobacco plantation. Offender was unaware that tobacco growing was an illegal enterprise. Plantation was already ata an advanced stage when he arrived there. Offender worked there for three weeks until they were caught by police. It was at that time offender first realised there was something wrong. Offender is diligent and industrious young person who was unwittingly drawn into illegal work because of their poor English and unfamiliarity with Australian laws and customs.  

    Deportation: Offender is remorseful for participation. Offender expressed hopes to remain in the country to pursue employment and further study. Offender is on criminal justice visa which may lead to them being deported but that is not a matter that can be taken into account in the sentencing process.  

    Offender released on recognisance release order for 12 months.
  • 11 March 2021 —

    Dickinson v The Queen [2021] VSCA 50 — financial advantage offences — appeal against sentence — extra-curial punishment — totality

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    The offender was sentenced following a plea of guilty to 1 count of dishonestly obtaining a financial advantage by deception from a Commonwealth entity contrary to s 13.42(1) of the Commonwealth Criminal Code. Original sentence imposed 2 years and 6 months imprisonment with a 12 month non-parole period. The offender appealed on two grounds: that the sentencing judge only gave a modest sentencing benefit as consequence of adverse media publicity and the sentence imposed was manifestly excessive.   

    Extra-Curial Punishment: A complaint about the weight attributed to a particular factor in the sentencing discretion is not a round of specific error, but may only be considered in the context of a ground which alleges manifest excess. It is not apparent why it was not open to the judge to attribute modest rather than more substantial weight to the media publicity. The offender had, over a period of 4 years, engaged in conduct which if discovered could properly be expected to be the subject of widespread public criticism and condemnation. The question of the relevance of media coverage as a mitigating factor, and the weight to be attached to it must necessarily depend on the facts of each case.  

    Totality: Sentencing judge noted she was unable to backdate the sentence that she was to impose, and stated that the sentence would run concurrently with the current sentence. Sentencing judge made allowance for totality by providing for some 7 weeks of concurrency between sentence imposed and sentence offender was then undergoing. Offending for which offender was previously sentenced was not closely related to offending in present case. Offending in each instance was separate, involving different victims, and different conduct by the offender. It is not reasonably arguable that sentencing judge failed to take into account and give sufficient weight to the principle of totality.  

    Leave to appeal against sentence refused.
  • 10 March 2021 —

    DPP v Edwards [2021] VCC 238 — child exploitation offences — sentence — mental condition

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    The offender was sentenced following a plea of guilty to 2 counts of using a carriage service to groom a person under 16, 1 count of transmitting child pornography material and 1 count of transmitting indecent communications to a person under 16 using a carriage service contrary to the Commonwealth Criminal Code.  

    Mental Condition: While offender demonstrated inefficiencies in his capacity to reason, adapt, problem solve and moderate behaviour, they exhibited a clear understanding of the wrongfulness of their conduct. Psychologist concluded their disability was not causally linked to his offending but did consider that disability may have been contributor to behaviour, given obvious impairments exhibited with respect to decision-making. Offender was not suffering from a mental illness. Offending was offender’s way of coping with particularly difficult time. Offender’s mental health issues and very low intellectual capacity would contribute to making a sentence of imprisonment weigh more heavily on them. Offender would be more susceptible to manipulation. Offender’s moral culpability reduced to an extent. Offender is remorseful for offending.  

    Offender sentenced to 200 hours of community service over 2 years.
  • 8 March 2021 —

    Cressel v The Queen [2021] NSWCCA 26 — drug importation offence — appeal against sentence — guilty plea — Xiao error

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    The offender was sentenced following a plea of guilty to 1 count of importing a commercial quantity of a border controlled drug contrary to s 307.1(1) of the Commonwealth Criminal Code and 1 count of importing a marketable quantity of a border controlled drug contrary to s 307.2 of the Commonwealth Criminal Code. Original sentence imposed 15 years and 6 months imprisonment with a 6 year and 6 month non-parole period. Count 1 related to 3326.3 grams of pure cocaine. Count 2 related to 1423.7 grams of pure cocaine. The offender appealed on the basis that the sentencing judge erred by expressly failing to take into account the utilitarian value of the plea of guilty.  

    Guilty Plea: Reasons for sentence were given at time prior to Xiao v The Queen being determined. Plea carries with it significant utilitarian value. Discount of 25% is appropriate. Offender wrote a letter outlining remorse to the sentencing judge. Little weight is placed on the contents of that letter. There is considerable evidence of offender’s expressions of remorse and the Court was satisfied those expressions are genuine.  

    Hardship to Offender: Offender was subjected to serious racial vilification by a group of Correctional Officers. Psychologist reported that as a consequence of the incident the offender reported symptoms consistent with a diagnosis of PTSD. Psychologist concluded offender’s mental health had been eroded because of the incident, which had rendered time in custody more onerous. This is a factor of some significance.  

    Leave to appeal granted. Appeal allowed. Offender sentenced to 10 years imprisonment with a 6 year non-parole period.
  • 5 March 2021 —

    R v Russell [2021] QCA 35 — dishonesty offences — appeal against sentence — totality

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    The offender was sentenced after pleading guilty to 37 counts of obtaining financial advantage by deception contrary to s 134.2 of the Commonwealth Criminal Code, and 3 counts of attempting to obtain a financial advantage by deception contrary to the Commonwealth Criminal Code. Original sentence imposed 3 years and 6 months imprisonment with an 18 month non-parole period. Offender appealed on the basis that sentencing judge misapplied and failed to give the totality principle sufficient and therefore rendered the sentence manifestly excessive.  

    Totality: Totality principle is designed to ensure that offender is not unjustly burdened by being required to serve an aggregate term of imprisonment more severe than may fairly considered to be merited by totality of offender’s criminality. Offender did not serve full custodial component of previous sentence, but spent entire period of custody under previous sentence either in custody or in the community. The sentencing judge took into account the known length of the period the offender was in custody in consequence of the imposition of the previous sentence.  The sentencing judge however was not obliged to moderate the sentence upon the false premise that the offender had served 18 rather than 12 months in custody under the previous sentence.  

    Leave to appeal not granted. Appeal dismissed.
  • 5 March 2021 —

    R v Robsan-Bolan [2021] NSWDC 48 — drug importation offences — sentence — nature and circumstances — mental condition — hardship — rehabilitation

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    The offender was sentenced after pleading guilty to 1 count of attempting to import a marketable quantity of a border-controlled drug contrary to ss 11.1(1) and 307.2(1) of the Commonwealth Criminal Code and a State offence. Offence related to 300.83 grams of pure cocaine. Additional Commonwealth offences taken into account on s 16BA Schedule.  

    Nature and Circumstances: Offender used ‘dark web’ to attempt to purchase a marketable quantity of cocaine in a mailed package originating from Chile. The package was intercepted by Australian Border Force. There was a lack of sophistication in the offending. If there was any impulsivity in the transaction itself, offender still had time to consider whether they would collect the packages, but went through with the collection anyway. Desire for financial gain motivated the offender but was not the sole consideration. Offender had vague aspirations to finance the costs of mother’s expected treatment for cancer. As the drugs were confiscated there was no demonstrable harm, however at least economic harm is done to the community by the resources that need to be utilised in law enforcement to detect and investigate criminal activity.  

    Mental Condition: Psychologist opines that offender’s mental state, sleep deprivation and distorting effects of severe drug addiction would have been contributing factors to impaired cognitive performance which contributed to errors in judgment. Immaturity and disorder, in circumstances of unemployment and news of mother’s diagnosis, did soften culpability.  

    Hardship to Offender: Offender has been isolated. Offender has not access to treatment programs nor trips from family members. Offender has been victim of violence, which they have not complained about fearing reprisal. Offender tried to harm themselves when first entering custody.  

    Rehabilitation: Offender has implicitly indicated willingness to rehabilitate. Offender has committed to do what they can to avoid further criminal activity. On release offender will return to family fold, and their parents, to the extent they are able will take all necessary steps. As to the absence of a concrete plan for treatment, offender has been in custody for the last year and it has not been practicable to identify a plan. Rehabilitation is elevated in this case due to having already endured a traumatic experience in custody and being in need of treatment. This is also for community’s benefit in having offender more effectively re-integrated after period of incarceration.  

    Offender sentenced to 3 years and 6 months imprisonment, with a 2 year and 6 month non-parole period.
  • 5 March 2021 —

    DPP v Sloan (a pseudonym) [2021] VCC 209 — child exploitation offences — sentence — nature and circumstances — mental condition — victims of offence — remorse — rehabilitation

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    The offender was sentencing after pleading guilty to 2 counts of using a carriage service to solicit child abuse material contrary to s 474.22(1)(a)(iv), 1 count of using a carriage service to access child abuse material contrary to s 474.22(1)(a)(i), 3 counts of using a carriage service to transmit child abuse material contrary to s 474.22(1)(a)(iii) and 1 count of possessing child abuse material obtained or accessed using a carriage service contrary to s 474.22A(1) of the Commonwealth Criminal Code.  

    Nature and Circumstances: Accessing, transmission and storage of child abuse material involving children unknown to offender was serious enough, but offenders willingness to exploit and potentially corrupt co-offender’s children, and even offender’s own child raises offending to whole new level. Offender did not care that the children knew them as their mother’s partner and trusted them in that capacity. Offender was prepared to subjugate their welfare, as well as the welfare of the children they did not know, to their own sexual desires. Sustained nature of offending only came to an end upon detection. Large proportion of material was videos as opposed to images, and a large number fell into the more serious categories. Offending occurred while on probation and a recognisance release order to be of good behaviour.  

    Mental Condition: It is difficult to see how offending can be considered impulsive given repetitive and sustained nature. Pure volume of child abuse material and various ways it was accessed and stored belies explanation that interest only arose in context of drug use and that otherwise offender was horrified by such activity. Impaired mental functioning, particularly intellectual disability, does reduce moral culpability for offending. Disability reduces significance of denunciation to the sentencing process and requires some moderation of deterrence.  

    Victims of Offence: Grandmother of victim described how offender destroyed victim’s trust in people, even own family. Grandmother is concerned victim will be more affected as she matures and realises the full extent of the depravity she was exposed to. Father of Henry and Kelly Pana says children have been objectified and their childhood has been taken away. Children have to live with the knowledge that their images will remain on the internet forever.  

    Remorse: Offender minimised conduct in accounts to police and psychologist, which tends to undermine any claim to genuine remorse. The sheer volume of material, the sustained and repeated nature of offending and prior convictions all tend to militate against a finding of remorse. Sentencing judge not persuaded that offender understood the damage cause to the children.  

    Rehabilitation: Offender was previously sentenced for Commonwealth offence relating to using a carriage service to menace, harass or cause offence. Offenderw as prepared to distribute mage of Aubrey after having done something similar before, which reflects very badly. Offender was not deterred by sentence imposed in 2018 from offending again. Prospects of rehabilitation are guarded at best.  

    Offender sentenced to 4 years and 1 month imprisonment with a 2 year and 6 month non-parole period.
  • 4 March 2021 —

    Musca v The Queen [2021] WASCA 37 — child exploitation offences — sentence — totality — recognizance release order

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    The offender was sentenced after pleading guilty to 1 count of using a carriage service to access child pornography material contrary to s 474.19(1)(a)(i) of the Commonwealth Criminal Code, 1 count of using a carriage service to transmit child pornography material contrary to s 474.19(1)(a)(iii) of the Commonwealth Criminal Code, and 2 state offences. Offender was sentenced to 19 months imprisonment to be released on recognizance release order after 14 months.  Offender appealed on basis that sentencing judge erred in applying totality principle to State offending, and separately to Commonwealth offending and that the recognisance release order was manifestly excessive and disproportionate to the total effective sentence.  

    Totality: Total effective sentence imposed on an offender who has committed multiple offences must bear proper relationship to overall criminality involved in all the offences. Sentencing judge correctly identified effect of the totality principles and arrived at a total effective sentence that included both wholly concurrent sentences and partly concurrent and cumulative sentences. The marginal effect of the sentences for the Commonwealth offences on the total effective sentence indicates that totality did play a significant role in the structure of the overall sentence imposed. Application of the totality principle does not require the use of any particular verbal formula. Ground 1 was rejected.  

    Recognizance Release Order: Focus on the proportion that the overall minimum period bore to the total effective sentence was apt to divert attention from the nature of the sentencing task to fix the specified period of imprisonment under the RRO. The conclusion of the minimum term required was by reference to the length of the term itself rather than by reference to the proportion that it bore to the total effective sentence. The total effective sentence may be described as lenient. The result was a consequence of offender’s early guilty plea, genuine remorse, steps to rehabilitate and difficult personal history. Sentence was within the range of a sound exercise of the sentencing discretion.  

    Leave to appeal refused. Appeal dismissed.    
  • 4 March 2021 —

    DPP v Blackborrow [2021] VCC 207 — dishonesty offences — sentence — nature and circumstances — guilty plea — remorse

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    The offender was sentenced after pleading guilty to 1 count of dishonestly obtaining financial advantage by deception from a Commonwealth entity contrary to s 134.2(1) of the Commonwealth Criminal Code and 1 count of producing a false or misleading document in purported compliance with a law of the Commonwealth contrary to s 137.2(1) of the Commonwealth Criminal Code.  

    Nature and Circumstances: Offender was in receipt of Newstart Allowance and made 170 false under-declarations in relation to employment income. Offender only declared portion of total fortnightly income rather than whole income. Offender obtained $85,014.73 in payments of Newstart Allowance. Offender was required to enter into a job plan recording the activities that were agreed between offender and either employment services provider or the Department. Offender was entitled to obtain temporary exemption from requirements of job plan on medical grounds. Offender was not trying to accumulate wealth but merely trying to support themselves in the face of their gambling losses. Offender was a person in skilled employment earning a reasonable income. Offender had no dependents and did not offend to provide for others in need. Offender did not voluntarily desist from offending.  

    Guilty Plea: Offender pleaded guilty early, which ahs a heightened utilitarian value. The COVID-19 pandemic may be abating as a public health crisis, but its effects on the administration of criminal justice remain with considerable delay occurring in running jury trials, which is likely to continue into the foreseeable future.  

    Remorse: Offender has made some attempts at repaying the money, albeit only $3,653.83, however offender is person of very limited resources and notwithstanding the modest amount offender has managed to repay, it is demonstrative of remorse.  

    Offender sentenced to 24 months imprisonment, to be released on a recognisance release order after 8 months.
  • 3 March 2021 —

    Sigalla v The Queen [2021] NSWCCA 22 — corporate offences — appeal against sentence — carriage totality — cumulative and concurrent sentences — parity — rehabilitation

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    The offender was sentenced after pleading guilty to 24 counts of dishonestly using position as director of TZ Limited with intention of directly or indirectly gaining an advantage for himself or a third party contrary to s 184(2) of the Corporations Act 2001 (Cth). Original sentence imposed 10 years imprisonment with a 6 year non-parole period. Offender appealed on grounds that sentencing judge erred in applying totality principle, that the sentence imposed on co-offender gave rise to justifiable sense of grievance, and that the sentencing judge erred in finding that failure to acknowledge wrongdoing prevented finding that offender had any prospects of rehabilitation.  

    Totality: Sentencing judge’s remarks on sentence do not explain the impact of totality when determining sentence for each offence, and in particular whether it operated to aggravate or mitigate the sentence which would otherwise have been imposed. The reference to s 16A(2)(b) and (c) suggests the impact would be aggravating yet the principle of totality is a mitigating principle. Sentencing judge treated totality as aggravating principle. Error is established as sentencing judge took into account totality of offending in fixing sentences for each individual offence.  

    Cumulative and Concurrent Sentences: While it is a highly relevant consideration whether the conduct involved two separate incursions into criminal activity, or one multi-faceted course of criminal conduct, the circumstance that a number of offences arise out of the same course of criminal conduct does not dictate that concurrent sentences must be imposed. Sentencing judge gave careful consideration to period of each sentence that should be exclusively referable to the offence for which it was imposed. There was a very substantial degree of concurrency.  

    Parity: Co-offender was sentenced by the same judge and considerable obstacles confront an applicant contending for error based on parity where sentencing judge is fully aware of sentences imposed upon co-offenders and provides reasons for the disparity. Co-offender had expressed contrition and been in custody in Thailand in onerous conditions for three months. Co-offender had lifelong history of depressive symptoms, was 70 years of age and suffered from physical ailments which would make custody more onerous. Disparity in sentences received is amply explicable by those differences and does not give rise to justifiable sense of grievance.  

    Rehabilitation: Sentencing judge observed that for there to be prospects of rehabilitation it is necessary for there to be some acknowledgement of wrongdoing, which was absent in this case, was incorrect in principle. There were contrary indicators to the findings about lack of remorse, hubris, sense of entitlement, and that the ends justified the means. Offender was of prior good character, had no criminal record, was well-educated, connected and intelligent, married with three daughters who continued to visit and support them. Offender was unlikely to require assistance to reintegrate into community. Factors point to some prospect offender will be able to resume worthwhile role as honourable citizen. Error is established.  

    Leave to appeal granted. Appeal allowed and sentences quashed. Offender sentenced to 9 years and 6 months imprisonment with a 5 year and 9 month non-parole period.
  • 15 February 2021 —

    Hildebrand v The Queen [2021] NSWCCA 9 — child exploitation offences — appeal against sentence — cumulative and concurrent sentences — nature and circumstances — totality

     

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    The offender was sentenced after pleading guilty to 10 counts of using a carriage service to menace or harass a person contrary to s 474.17(1) of the Commonwealth Criminal Code, 1 count of using a carriage service to solicit child pornography material contrary to s 474.19(1) of the Commonwealth Criminal Code and 14 State offences. A further 18 additional offences were taken into account under s 16BA. The original sentence imposed 20 years imprisonment with a 15 year non-parole period. The offender appealed on the basis that the sentencing judge failed to apply procedure mandated by s 16BA, erred by sentencing an overall aggregate sentence for Commonwealth and State Offences, failed to take into account accumulation of sentence as ‘special circumstance’ and erred with respect to objective criminality.   Cumulative and Concurrent Sentences: Under s 16B, Court when sentencing for a Commonwealth offence must have regard to any sentence already imposed by the Court for any other federal offence or any state offence being a sentence that the person has not served. Sentencing judge was conscious of not imposing excessive sentence after determining sum total of each individual sentence indicated. There is no requirement for sentencing judge to identify by paragraph number in s 16A the matters that are clearly taken into account in substance.     Nature and Circumstances: The challenge is to the ratio of the overall effective sentence in light of accepting limited special circumstances. Sentencing judge was mindful of the matter and expressly referred to the matter and determined that nothing less than a non-parole period of 15 years would be sufficient. That determination is justification for not reducing statutory ratio. Starting point for all indicative sentences were entirely consistent with assessment of objective seriousness. Offender coerced and deceived victims, sometimes threatening them, sometimes overbearing their wills and vitiating their consent. Starting points do not indicate any error in relation to aggregate sentences imposed for the various groups of offences. Totality: Offending took place over period of almost 10 years, with 14 different victims. From 2011 offender was a serving police officer. Planning for many of the offences was extensive. Nothing in offender’s subjective features excused or even explained offending in an exculpatory way, or in any way which modified or reduced his moral culpability. Error only demonstrated in relation to sequences which had Commonwealth offences taken into account on a Form 1 document. Offences needed to be attached to a sequence where a Commonwealth offence was the principal offence. Leave to appeal granted. Appeal allowed. Sentence quashed. Proceedings remitted to District Court for sentence.
  • 5 February 2021 —

    Zahab v The Queen [2021] NSWCCA 7 — terrorism offences — appeal against sentence — hardship to offender

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    The offender pleaded guilty to 1 count of intentionally providing support or resources to a terrorist organisation, namely Islamic State, that would help the organisation engage directly or indirectly in preparing, planning, assisting in or fostering the doing of a terrorist act, knowing the organisation was a terrorist organisation offence contrary to s 102.7(1) of the Commonwealth Criminal Code and 1 count of failing to comply with an order under s 3LA(2) Crimes Act 1914 contrary to s 3LA(5) Crimes Act 1914 (Cth). Original sentence imposed 9 years’ and 1 month imprisonment, with a 6 year and 10 month non-parole period. Offender appealed on three interrelated basis that the sentencing judge failed to take hardship into account, that the sentencing judge failed to take the conditions of custody into account, and that the onerous conditions of detention at HRMCC will continue into the foreseeable future.  

    Hardship to Offender: The relevant comparison is between the condition in which the offender is to serve their sentence compared to that of the general prison population, not between persons convicted of similar offences. When offenders of a particular class are housed in similarly onerous conditions the comparison would be meaningless. There was no direct evidence of the nature of conditions of custody. Offender’s evidence was given in context of describing how they have changed their views concerning IS and said little about the conditions of custody. Evidence from psychologist concluded that offender was coping as well as could be expected with the isolation described.  

    Leave to appeal granted. Appeal dismissed.
  • 5 February 2021 —

    DPP (Cth) v Waller [2021] VCC 79 — child exploitation offences — nature and circumstances — contrition — mental condition — hardship to the offender

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    The offender pleaded guilty to 2 counts of publishing material using a carriage service, the material being child abuse material, offence contrary to s 474.22(1) of the Commonwealth Criminal Code, 5 counts of accessing material, using a carriage service, the material being child pornography material offence contrary to s 474.19(1) of the Commonwealth Criminal Code, 1 count of contravening the requirement of an order made under s3LA(2) Crimes Act 1914 (Cth). Additional state offences.  

    Nature and Circumstances: The fact that real children were not involved does not mean that children generally and the community have not been harmed by offender’s conduct. Offender published images and stories on the internet. While this was not done for profit, they were disseminated by offender for others to read. No real children were involved in the material the offender accessed but the stories and images involved sexual, humiliating, violent and depraved abuse of vulnerable young boys.  

    Contrition: Sentencing judge not persuaded that pleas of guilty reflect genuine remorse. Offender told psychologist that arrest was an attack upon them as they were not involving others. Offender did not believe they had committed a crime. Offender is lacking in insight as to wider ramifications of publishing child pornography and abuse material on the internet and of accessing and possessing such material. Such conduct tends to normalise exploitive sexual activity involving children and may fuel demand for such material whether or not it involves real children.  

    Mental Condition, Hardship to the Offender: Sentencing judge drew inference that limbs five and six of Verdins apply. Asperger’s syndrome and depression will make gaol sentence weigh more heavily than it would on others not suffering such conditions. Asperger’s will make offender more vulnerable to bullying and harassment.  

    Offender sentenced to 24 months’ imprisonment, to be released on recognisance release order after 9 months.
  • 4 February 2021 —

    CDPP v Wallenius Wilhelmson Ocean AS [2021] FCA 52 — nature and circumstances — loss or injury — contrition — cooperation — general deterrence — extra-curial punishment — parity

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    The offender was sentenced following a plea of guilty to one count of giving effect to a cartel provision offence contrary to 44ZZRG(1) of the Competition and Consumer Act (Cth)  

    Nature and Circumstances: Offence committed by WWO was very serious offence in all the circumstances. Cartels are widely condemned as the most egregious forms of anti-competitive behaviour. Cartel conduct harms consumers, businesses and the economy, and is likely to increase prices, reduce choice and distort innovation processes. WWO’s conduct was covert, deliberate, systematic and involved planning and deliberation. It is not possible to determine the benefit derived, but there can be little doubt that WWO would have benefited from its conduct in giving effect to the cartel provision. Benefits a corporation may derive from a cartel offence are not limited to profits. Non-adherence in the context of cartel arrangements is not necessarily a significant mitigating factor. Cheating between cartelists is a common feature of many cartels.  

    Contrition: Beyond guilty plea, there is little if anything that WWO was or is genuinely contrite or remorseful. Absence of apology or express statement of regret and contrition by any senior officer of WWO makes it difficult to accept that WWO is genuinely remorseful and contrite. Implementing compliance and training measures demonstrate that WWO knows it has done wrong and needs to change its way, but that falls well short of sort of genuine contrition that is deserving of any significant weight in the sentencing exercise.  

    General Deterrence: Cartel conduct is notoriously difficult to detect, investigate and prosecute. It involves large and sophisticated corporate offenders who can deploy considerable resources and position to minimise risk of detection. Cartel conduct is economic crime generally involving offender weighing up whether the expected benefit from the conduct outweighs the risk of detection and punishment.  

    Extra-Curial Punishment: Some weight must be given to overseas penalties imposed on WWO, however overseas penalties were not demonstrated to have been imposed in respect of conduct of subject charge, except for US and European Commission penalties. While overseas penalties are very large, so too is WWO.  

    Parity: Sentence imposed on NYK was fine of $25 million. Sentence imposed on K-Line was fine of $34.5 million. WWO’s offending was less serious than NYK and K-Line. WWO’s offending occurred over a period which was relevantly similar to the period over which NYK and K-Line occurred. Specific offending conduct occurred on two occasions in 2009 and then a 1 year period between June 2011 and July 2012. WWO did not, on the agreed facts and evidence, provide any assistance to the ACCC.  

    Offender fined $24 million. Fine incorporated 20% discount for WWO’s early plea of guilty.
  • 3 February 2021 —

    R v Green [2021] ACTSC 13 — carriage service to menace/harass/offend — nature and circumstances — mental condition — family and dependents — rehabilitation

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    The offender was sentenced following a plea of guilty to 1 count of using a carriage service to menace/harass/offend offence contrary to s 474.17(1) of the Commonwealth Criminal Code. Additional state offences.  

    Nature and Circumstances: Offender sent complainant 10 separate text messages that were bizarre and threatening. Messages were sent against background of serious assault, unlawful confinement and threats to kill the complainant. The complainant took the threats very seriously. This was a serious offence of its type.  

    Mental Condition: Offender has major recurring depressive disorder, associated with moderate symptoms, and a substance use disorder in partial remission. Offender has used drugs to self-medicate for mental health conditions. Offender’s depressive symptoms had no significant bearing on the offending conduct.  

    Family and Dependents: Offender lived with elderly disabled mother, to whom they were a full-time carer. Since arrest, offenders daughters have moved to live with their mother and friends are doing their best to care for the offender’s elderly mother.  

    Rehabilitation: Offender’s minimal involvement in the criminal justice system for a lengthy period preceding the offences and offender’s apparent capacity and motivation to address mental health and drug problems suggest reasonably good prospects of rehabilitation.  

    Only appropriate sentences are sentences of imprisonment.  

    Offender sentenced to 4 years’ imprisonment with a 20 month non-parole period. Requirement of recognisance release order dispensed with as offender will be serving Territory sentence immediately following expiry of Commonwealth sentence.    
  • 25 January 2021 —

    R v Yardley [2021] ACTSC 2 — child exploitation offences — nature and circumstances — rehabilitation — mental condition — contrition

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    The offender was sentenced following a plea of guilty to 1 count of using a carriage service to transmit and solicit child pornography material, 1 count of using a carriage service to transmit and make available child pornography material, 1 count of using a carriage service to transmit, solicit, and make available child pornography material, 1 count of using a carriage service to transmit, solicit, make available, and cause child pornography material to be transmitted to themselves offences contrary to s 474.19(1) of the Commonwealth Criminal Code. Additional state offence.    

    Nature and Circumstances: Where material is obtained for personal use, significance of quantity lies more in number of different children depicted and therefore victimised than the volume of material. Each of the children were victimised by offender on every occasion that an image of them was transmitted and viewed. Offender transmitted and possessed material for 8 to 9 months. Offender transmitted material to 11 different recipients.    

    Rehabilitation, Mental Condition: Offender diagnosed with autism, social anxiety and Tourette’s syndrome. There is a relationship between offender’s mental disorder, being the offender’s autism spectrum disorder, and their offending behaviour. Prospects of rehabilitation remained guarded.    

    Contrition: No evidence indicating offender has any remorse for conduct. There was complete lack of remorse and contrition at time of offending, as evidenced by content of communications between offender and unknown person with whom offender engaged in the transmission of material. Ongoing denial demonstrates this lack of remorse continues. Offender’s lack of remorse should be viewed in context of the offender’s mental conditions.    

    Offender sentenced to 39 months’ imprisonment, to be released on recognisance release order after 15 months.    
  • 22 January 2021 —

    CDPP v CCQ [2021] QCA 4 — child exploitation offences — nature and circumstances — manifest inadequacy

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    The offender was sentenced following a plea of guilty of an aggravated offence – involving conduct on three or more occasions and two or more people, using a carriage service to transmit child pornography material, using a carriage service to transmit child abuse material, using a carriage service to solicit child abuse material, using a carriage service to cause child pornography material to be transmitted to self, using a carriage service to solicit child pornography material and using a carriage service to access child pornography material contrary to the Commonwealth Criminal Code. Additional offence was taken into account under s 16AB. Original sentence imposed 12 years imprisonment with a 6 year non-parole period. Crown appealed on the basis that the sentence was manifestly inadequate.  

    Nature and Circumstances: Numerical equivalence is seldom able to be demonstrated through comparable cases. The number of images and videos is but one of many factors to be weighed in the balance. The type of material involved across the board centred heavily on images and videos of very young victims, particularly involving newborn babies and predominantly toddlers. By focusing not just on vulnerable children, but on the most vulnerable of children the offender descended into ultimate depravity. Offender’s conduct in seeking images and videos, distributing them, encouraging others to distribute or receive them, and administering at least one group of like-minded people meant that offender became one of the architects of degradation of human life. The corruption of newborns and toddlers proceeded from their earliest time of life, denied them any semblance of a normal life and degraded them in a way that made them simply objects for perversion. By degrading them, the offender degraded everyone else in normal society. By reason of offender’s participation in numerous groups, the dissemination of material was itself enormous in quantity, and to a potential enormous audience. Multiple platforms were used and the categorising and storing of images demonstrated methodical and organised approach. This was a determined, prolonged, sophisticated and unrelenting pursuit of pernicious material. Offender administered group. The group collectively had over 3600 and 2000 videos posted. Sentence imposed does not properly reflect gravity of offending.  

    Appeal allowed. Offender re-sentenced to 16 years imprisonment with a 10 year non-parole period.
  • 19 January 2021 —

    R v Terrence Edward Laybutt [2021] NSWDC 2 — child exploitation offence — nature and circumstances — contrition — character

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    The offender was sentenced following a plea of guilty of 1 count of using a carriage service to transmit a communication to another person with the intent to procure that person to engage in sexual activity, that person being under the age of 16 and the offender over the age of 18 contrary to s 474.26(1) Commonwealth Criminal Code.

    Nature and Circumstances: Offender made reference to their work as a teacher to gain the confidence of the person they believed was the child. The seriousness of the offending goes beyond low range into the mid-range. This is due to the repeated nature of the communications constituting the offence and the graphic and inappropriate language, seemingly dressed up as appropriate by reason of being educational. It is also due to the matters that sought to gain the child’s confidence including reference to teaching, assurance regarding preventing pregnancy, and offender’s ‘politeness’ which could more accurately be described as obsequious deceit. The offender engaged in gross and inappropriate physical actions of the offender and encouraged the ‘child’ to keep it secret.  

    Contrition: Evidence to contrition, remorse and regret was not challenged. Evidence was supported by offender’s psychologist and psychiatrist as well as the testimonial of their brother and own evidence. There is an element of denial by offender as to acknowledging their wrongdoing. There is an element of loneliness contributing to the offender, but there are inconsistencies in support of this e.g. the daytime communications. Offender does suffer from depression, which was worse at the time of offending. Whilst sentencing judge unreservedly satisfied as to remorse, sentencing judge not entirely satisfied that there was frank and complete acknowledgment of the motivations of wrongdoing.  

    Character, Antecedents, Age: Offender has been pro social law-abiding hard-working family man and credit themselves and their family. Sentencing judge did not consider that nature of offending means that good character should not be given any weight. Term of imprisonment may undo improvements to offender’s health which may in turn make them more likely to reoffend upon release. It was not due to offender’s standing in the community as a teacher that they were able to communicate with the ‘child’.  

    Offender sentenced to 1 year and 3 months imprisonment with a 1 year and 3 month non-parole period.
  • 12 January 2021 —

    DGF v The Queen [2021] WASCA 4 — drug importation offence — guilty plea — co-operation — manifest excess

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    The offender was sentenced following a plea of guilty of 1 count of importing a commercial quantity of a border-controlled drug contrary to s 307.1(1) Commonwealth Criminal Code. The original sentence imposed 6 years and 3 months’ imprisonment with a 4-year non-parole period. The offender sought to appeal against the sentence on three grounds. Ground 1 alleged that the sentencing judge erred in considering the discount for the offender’s guilty plea and past cooperation. Ground 2 alleged that the head sentence was manifestly excessive. Ground 3 alleged that the accumulation of grounds 1 and 2 let to a miscarriage of justice.  

    Guilty Plea: Offender received 40% discount for plea of guilty and past co-operation. Offender’s plea was valuable and deserved a substantial discount. It was a plea given at the first reasonable opportunity consistent with contrition and remorse and a willingness to facilitate the course of justice. The prosecution case was strong. There was no entitlement to a 25% discount for the plea of guilty. The sentencing judge was not bound to reduce the sentence he would otherwise have imposed by 25%.  

    Co-Operation: There is no standard percentage discount for past co-operation. The past co-operation provided by the offender was also valuable and deserved a substantial discount. There had been and would continue to be some personal risk to the offender as a result of their co-operation. So far as the co-operation had let to practical results, there was a real risk of identification and possible retribution. Based on the offender’s co-operation appeal judge inferred that offender would probably endure more onerous conditions than the general prison population while imprisoned. Beyond the most general of observations, it was not and is not possible to assess the specific degree to which the offender is likely to be subjected to more onerous conditions. There is danger in focussing too much on the percentage discount articulated by the sentencing judge. The instinctive synthesis informing an appropriate sentencing disposition is not achieved by algorithm or mathematics. The reduction of 4 years and 3 months was a substantial discount. It was open to the sentencing judge to view the reduction as an appropriate and proper recognition of the plea and co-operation.  

    Manifest Excess: The sentencing judge referred to all of the specific matters relied on by the offender. It cannot be suggested that the sentencing judge overlooked any of these relevant sentencing considerations.

    Leave to appeal granted for grounds 1 and 2. Leave to appeal on ground 3 dismissed. Appeal was dismissed.  
  • 23 December 2020 —

    Green (a pseudonym) v The Queen [2020] NSWCCA 358 — drug importation offences — guilty plea — Xiao error

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    The offender was sentenced following a plea of guilty to 1 count of engaging in banking transactions relating to money or other property over $100,000 that is reasonably suspected to be proceeds of crime offence contrary to s 400.9 of the Commonwealth Criminal Code and 1 count of importing a commercial quantity of a border controlled drug offence contrary to ss 307.1(1) and 311.4 of the Commonwealth Criminal Code. Offence relates to 12.0116 kilograms of pure methamphetamine. Additional offence of possessed money over $100,000 reasonably suspected to be proceeds of a crime offence contrary to s 400.9(1) of the Commonwealth Criminal Code taken into account per s 16BA. Original sentence imposed 10 years’ imprisonment with a 6 year non-parole period. The offender appealed on the basis that the sentencing judge did not have regard to the utilitarian value of the offender’s plea of guilty.

    Guilty Plea: Reasons for sentence were given at time prior to Xiao v The Queen being determined. Sentencing judge allowed no discount for the utilitarian value of the plea of guilty. The utilitarian value of the plea was high and a discount of 25% should be applied to sentence in the ordinary course. The sentencing judge accepted that the offender’s level of assistance was significant and that the offender was deeply concerned about his safety. Sentencing judge applied a combined discount of 50%. Appeal judge held a discount of greater than 50% should not be given for the offender’s plea and their past and future assistance to authorities, notwithstanding that a discount of 25% is warranted for the utilitarian value of the plea and the level of assistance provided was significant. The circumstances of the case are not exceptional so as to warrant a greater discount. Nor would such a discount accord with the principles of sentencing, having regard to the objective seriousness of the drug offences in this case. The sentence imposed is warranted. Leave to appeal granted. Appeal dismissed.
  • 18 December 2020 —

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

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

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

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

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

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

    DPP (Cth) v Ali [2020] VSCA 330 — terrorism offence — nature and circumstances — manifest inadequacy

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    Offender was sentenced following a plea of guilty to 1 count of intentionally doing an act in preparation for, or planning, a terrorist act contrary to s 101.6(1) of the Commonwealth Criminal Code. Original sentence imposed 10 years’ imprisonment with a 7 year and 6-month non-parole period. CDPP appealed on the basis that the sentence and non-parole period were manifestly inadequate.  

    Nature and Circumstances: The offence embraces acts done in preparation for and planning of a very wide range of actions. Two features can be viewed as two axes of seriousness for sentencing purposes. The first, focusing on acts in contemplation, includes both threats and other actions targeted at property, electronic systems, public health or safety and the physical well-being and lives of other persons. The second, concentrating on acts actually done, encompasses a myriad of activities including conversations, research, acquisition of equipment, strategic planning, recruitment of fellow offenders and everything done in preparation or planning short of the terrorist act itself. The terrorist act for which the offender planned and prepared was of the most terrible kind. Offender intended to inflict mass casualties on random members of the public, gathered together at a time of annual civic celebration. The taking of hostages was calculated to subject a smaller group of victims to a more intimately terrifying encounter. The whole plan was designed with the objective of instilling widespread fear in the community and to inspire others. Both the objective gravity of the offending and the offender’s moral culpability were of the highest level.  

    Manifest Inadequacy: Just as youth is of diminished significance in cases of extreme violence, so mitigating factors personal to the offender may be given reduced weight in sentencing for terrorist offences. A sentence of 10 years’ imprisonment was on the facts of the case outside the range reasonably open to the sentencing judge. The sentence failed to sufficiently denounce the offending or to serve as a general deterrent.  

    Appeal allowed. Offender resentenced to 16 years’ imprisonment with a 12 year non-parole period. But for plea of guilty offender would have been sentenced to 20 years’ imprisonment with 15 year non-parole period.
  • 17 December 2020 —

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Offender sentenced to 5 years’ imprisonment with a 3 year non-parole period.      
  • 9 December 2020 —

    R v Grover [2020] VCC 1988 — child exploitation offences — nature and circumstances of offence — general deterrence — COVID-19 — mental condition

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    The offender was convicted following a plea of guilty of one count of using a carriage service to procure a person under 16 years of age and two State offences.  

    Nature and Circumstances of Offence: The features that are relevant to assessing seriousness of this offending include its duration, the considerable number of communications over that time and the explicit nature of the sexual discussions engaged in with the person believed to be a 14 year old girl. The persistence, the nature of the communications, the deceptions, the importuning and the escalating in an attempt at a face-to-face meeting with sexual activity as a part of the hoped-for outcome all make this a serious example of this type of offence.  

    General Deterrence: General deterrence is the primary sentencing consideration because of the paramount public interest in promoting the protection of children from sexual exploitation by adults. Grooming offences are becoming increasingly prevalent through apps such as Kik. It has long been accepted that cyber grooming offences also carry with them the implicit presumption of harm which also attaches to contact offences.  

    COVID-19: The continued threat of COVID-19 in the community entitles the offender to a reduction in sentence. There is a significant reduction in activities and opportunities and visits compared to those that existed before COVID-19. There is also the ever-present fear that if COVID-19 does find its way in, that there is less opportunity to protect yourself, a greater fear of contracting it and the inability to take steps to protect yourself. That is also significant in terms of assessing the value to be given to a plea of guilty.  

    Mental Condition: To be eligible for a justice plan, the offender must have recognised intellectual disability and have been accepted as eligible for disability services. Sentencing judge gave offender opportunity to provide such evidence if it existed. None was forthcoming. Evidence presented on plea does not raise realistic possibility of offender having or being diagnosed with an intellectual disability which would justify adjournment for further enquiry. Offender’s difficulty in completing activities of daily life without assistance and support have disappeared. The social and psycho-social matters relied upon previously do not apparently weigh in anymore.  

    Offender sentenced to 2 years’ imprisonment to be released on recognisance release order after serving 12 months’ imprisonment.  
  • 8 December 2020 —

    Dean v The Queen [2020] NSWCCA 317 — firearm offences — appeal against sentence — non-parole period

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    The offender was convicted following a plea of guilty to one charge of using a carriage service to threaten to kill contrary to s 474.15(1) Commonwealth Criminal Code and additional State offences. The offender was originally sentence to 7 years and 7 months’ imprisonment with a 6 year and 7 month non-parole period. The offender appealed on five grounds. Relevantly to the Commonwealth offence, the offender appealed on the basis the trial judge erred in imposing the total effective non-parole period and that the sentences were manifestly excessive.

    Non-Parole Period: It was open to the sentencing judge to achieve stated intention of extending period on parole by adjusting commencement dates of respective sentences. The intended outcome was not frustrated by the engagement of both State and Commonwealth sentencing regimes. The commencement and expiry dates defeated the objective of a longer period on parole. This ground of appeal was upheld, with the concessions and conclusions having the effect that the manifest excess appeal ground does not arise.

    State sentences reduced. Sentence for offence against Commonwealth will be 3 years imprisonment. Total effective sentence of 7 years’ imprisonment with a 4 year and 8 month non-parole period.
  • 7 December 2020 —

    DPP v Castles [2020] VCC 1967 — dishonesty offences — nature and circumstances — specific deterrence — contrition — mental condition — family and dependants

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    The offender was convicted following a plea of guilty to three counts of dishonestly obtaining a financial advantage by deception from a Commonwealth entity, contrary to s 134.2(1) Commonwealth Criminal Code. Offences relate to defrauding of $70,327.91 from the Department of Human Services. Additional offence of failure to comply with a condition of a Commonwealth recognizance release order.

    Nature and Circumstances: While offender made no secret of financial activities or relationship with Mr Castles, offender continued deception in brazen and audacious manner for approximately 6 years. Offending is clear example of greed, not need. Offending represents egregious example of obtaining financial advantage by deception.

    Specific Deterrence: Offender had significant and relevant prior criminal history, with majority relating to dishonesty offending and includes convictions for perjury, false documents, theft and defrauding Commonwealth. Offending occurred while offender was subject to recognizance release order as a result of being sentenced for similar offending, involving a number of charges of dishonestly obtaining a benefit to which the offender was not entitled amounting to $140,000 obtained over approximately 20 years. Offending occurred over significant period and can only be attributed to greed.

    Contrition:There is little evidence of genuine remorse. Comments made by offender seemed to be linked to consequences of conduct on themselves and their children. While offender is regretful for conduct, and has taken responsibility by pleading guilty, there is no evidence of appreciation of impact that conduct has on community and the pressure it places on the social security system which is designed for people in need.

    Mental Condition: Offender met criteria of suffering dependent personality disorder with borderline features. None of the diagnoses have causative link to offending however there is likely risk of conditions deteriorating in custody. Sentencing judge accepted that Verdins limbs 5 and 6 have application in relation to offender’s disorders.

    Family and Dependents: While sentencing judge accepted family would suffer hardship if offender was imprisoned, hardship did not amount to exceptional hardship. The family had recent involvement from CASA, Peninsular Health and DHHS, each of which have an understanding of the family history and associated risks to children.

    Offender sentenced to 3 years imprisonment to be released on recognisance release order after 2 years.
  • 2 December 2020 —

    Kwan v R; Kwok v R [2020] NSWCCA 313 — drug offences — appeal against sentence — guilty plea

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    The offenders were convicted following a plea of guilty of one count of attempting to possess a commercial quantity of a border-controlled substance, contrary to ss 307.5(1) and 11.1(1) of the Commonwealth Criminal Code. The offenders were originally sentenced to 20 years’ imprisonment with a non-parole period of 13 years. The offence related to 33.1565 kilograms of pure methamphetamine. The offenders appealed on a single ground that the sentencing judge did not have regard to the utilitarian value of the offenders’ plea of guilty.  

    Guilty Plea: The sentencing judge allowed no discount for the utilitarian value of the plea of guilty, as the decision of Xiao v R had not yet been determined. Recognition of the strength of the Crown case in the sentencing judgment and an acknowledgement of willingness to facilitate justice are not relevant to the utilitarian value of the plea. The assessment of the utilitarian value of the plea is predominantly governed by the timing of the plea. As the offenders entered pleas of guilty at committal, the Crown accepted that each plea warranted a 25% discount. The sentencing of the offenders may be undertaken jointly with differences in respective cases identified where applicable. The appeal judge found a lesser sentence should be imposed having regard to all relevant objective and subjective factors and after applying the 25% discount for the utilitarian value of the offenders’ plea of guilty.  

    Offenders were sentenced to 16 years’ imprisonment with a 10 year non-parole period.
  • 16 November 2020 —

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

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

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

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

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

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

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

     

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

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

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    sentence — preparing for or planning for terrorist act involving use of bladed weapon that was or were to be done with intention of advancing political, religious or ideological cause offence contrary to ss 101.6 and 11.2A of Commonwealth Criminal Code nature and circumstances — s 16A(2)(a) — offending was not spontaneous — whilst number of acts in which offender engaged took place on 12 October 2016 activities in days leading up to that cannot be ignored — activities included acquisition of two MTech knives and use of computer to access large quantity of extremist material — co-offenders discussed commission of terrorist attack in mosque bathroom — backpack in offender’s possession carried knives which were to be used in attack as well as handwritten note which directed that those who do not pledge allegiance to ISIS will not find themselves in paradise when they die — offender has been found guilty of preparatory acts — sentencing judge satisfied that terrorist attack was imminent — offender motivated by extremist, perverted and corrupt ideology — offender asserted that extremist material relied upon at trial constituted ‘Islamaphobic manipulation’ — effect of submission was that material was used in alarmist fashion not properly representative of its totality — these propositions are not accepted — evidence was adduced to establish that offender subscribed to violent ideology — presence of benign content on devices does not alter fact that offender accessed and stored large amount of extremist material — objective seriousness of offending falls around mid-range — general deterrence — s 16(A)(2)(ja) — in circumstances where protection of community, punishment of offender and denunciation and deterrence are dominant, subjective circumstances of offender will necessarily be given less weight — substantial sentences are warranted for offending even though force of ideological or religious motivation may mean that deterrence is unlikely to be effective — specific deterrence — s 16A(2)(j) — where offender has not resiled from entrenched extreme ideology significantly heavy sentence will be required to protect the community — contrition — s 16A(2)(f) — offender has not given sworn evidence and has not otherwise demonstrated any remorse or contrition for offending — age — s 16A(2)(m) — offender was 16 years old at time of offending — seriousness of offence is relevant to weight that can be given to youth of offender — does not mean that youth is not important but retribution and deterrence cannot in a case as serious as present give way entirely or even substantially to interests of rehabilitation — where immaturity is significant contributing factor to offence it may fairly be said that criminality involved is less than would be in case of adult of more mature years — offender was close to adulthood — greater weight may be given to retribution — no evidence which supports existence of causal connection between immaturity and offending — rehabilitation — s 16A(2)(n) — in passing sentence for most serious terrorist offences object will be to punish, deter and incapacitate such that rehabilitation is likely to play minor if any part — some evidence points positively towards offender’s prospects of rehabilitation — offender has obtained HSC and engaged in other rehabilitative courses — there have been occasions where offender’s behaviour in custody had posed threat to order and security of centre — offender embarked on hunger strike — even if rehabilitation courses were available sentencing judge could have no confidence that offender would engage in them — successful rehabilitation depends at least in part on offender renouncing any previously held extremist views — offender’s prospects of rehabilitation are poor — sentencing judge guarded about likelihood of reoffending — parity — positions of offender and HG essentially indistinguishable in terms of objective seriousness of offending — HG purchased knives but offender paid for them — HG made statements to police which may support conclusion that HG’s views are more extreme and criminality is greater — it is necessary to balance those against offender’s travel to El-Arish and accessing of extremist material — mere fact that HG accessed and held more extremist material of greater objective seriousness does not lead to conclusion that offender’s extremist beliefs were any less entrenched — findings as to respective prospects of rehabilitation, relevance of youth and need for deterrence are essentially same — offender sentenced to 16 years’ imprisonment with 12 year non-parole period        
  • 6 November 2020 —

    Abreu v The Queen [2020] NSWCCA 286 — drug importation offences — guilty plea — nature and circumstances — other offences — mental condition — COVID-19 — antecedents — rehabilitation — parity

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    appeal against sentence — 1 count of possessing commercial quantity of border controlled drug offence contrary to ss 307.8(1) and 11.2A(1) of Commonwealth Criminal Code — 1 count of dealing with proceeds of crime contrary to ss 400.4(1) and 11.2A(1) of Commonwealth Criminal Code — offence related to 7.283 kg of pure cocaine — original sentence imposed 11 years’ and 9 months imprisonment with 7 year non-parole period — guilty plea — s 16A(2)(g) — Xiao error — offender sentenced 16 months prior to Xiao — sentencing judge’s failure to take into account utilitarian value of guilty plea necessitates Court exercising independent sentencing discretion afresh to determine if lesser sentence is warranted — offender should be afforded discount of 10% on sentence that would otherwise have been passed for late plea of guilty — nature and circumstances — s 16A(2)(a) — offence involved possession of large commercial quantity of cocaine 3.6 times greater than prescribed amount for commercial quantity with street value of around $5.5 million — offending was deliberate and planned — offender committed offence for profit — offender played a trusted role as an intermediary in overall enterprise beyond being mere courier of drugs — objective seriousness is at lower end of mid-range of possession of commercial quantity of border controlled drug — being motivated by prospect of financial gain is aggravating circumstance however degree of aggravation is largely notional — other offences — s 16A(2)(b) — offence was committed while offender was on bail but offence of possession of cocaine was small suggestive of possession for personal use only — mental condition — s 16A(2)(m) — offender has history of heavy substance abuse and gambling — offender has PTSD, persistent depressive disorder and polysubstance abuse disorders — difficult to conclude that mental health issues were integral to offending — COVID-19 — offender is American citizen — experience of isolation has been heightened by pandemic — offender’s aunt, uncle and cousin died in New York from COVID-19 — offender has suffered deterioration in mental condition — antecedents — s 16A(2)(m) — offender has history of offending in United States — offender has no criminal record in Australia — rehabilitation — s 16A(2)(n) — offender has continued to demonstrate strong commitment to rehabilitation — offender has remained abstinent from drug abuse — notwithstanding past history of drug offending — offender’s commendable efforts and pro-social supports likely available to them when returned to United States — parity — co-offender sentenced to 10 years’ imprisonment with 6 year non-parole period — co-offender pleaded guilty at first available opportunity — offender was treated somewhat more favourably than co-offender — leave to appeal granted — appeal allowed — sentence quashed — offender sentenced to 10 years’ and 7 months imprisonment with 6 year and 2 month non-parole period
  • 6 November 2020 —

    R v Armstrong [2020] ACTSC 298 — child exploitation offences — mental condition — contrition — guilty plea

     

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    sentence — 1 count of possessing or controlling child abuse material contrary to s 474.22A of Commonwealth Criminal Code — 1 count of accessing child pornography material contrary to ss 474.19(1) and 474.22(1) of Commonwealth Criminal Code mental condition — s 16A(2)(m) — symptoms and behaviour consistent with diagnosis of Social Anxiety Disorder — offender will find particular difficult in dealing with disorder in custodial setting — contrition — s 16(A)(2)(f) — not confident in making any detailed assessment of offender’s actual remorse or contrition for offending — it is necessary to have a degree of persuasion from the material to reach conclusions — reports do not reveal person with true insight into effect of offending on others and consequent contrition or remorse — approach of offender appears to minimise extent of actions — guilty plea — s 16A(2)(g) — plea of guilty entered at earliest reasonable opportunity — plea is indicative of willingness to facilitate course of justice — weight of plea should be reduced by fact that prosecution case was very strong — offender sentenced to 18 months’ imprisonment to be released on recognisance release order after 6 months    
  • 5 November 2020 —

    DPP v Stockton [2020] VCC 1755 — child exploitation offences — guilty plea — nature and circumstances — mental condition — COVID-19 — extra-curial punishment — general deterrence — rehabilitation

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    sentence — 3 counts of using carriage service to solicit child pornography material offence contrary to s 474.19(1) of Commonwealth Criminal Code — 1 count of possessing child abuse material offence contrary to s 474.22A(1) of Commonwealth Criminal Codeguilty plea — s 16A(2)(g) — plea entered at very earliest opportunity — significant utilitarian value in avoiding cost and delay of trial especially with disruption caused by COVID-19 — plea considered in light of cooperation and admissions is indicative of remorse and willingness to facilitate course of justice — nature and circumstances — s 16A(2)(a) — charge 1 is at lower end of solicitation charge — charges 2 and 3 involve persistent requests of victims of sexually explicit nature in circumstances where offender knew they were young girls — charge 2 involves multiple requests of victim to undertake multiple different acts — charge 3 involves offender encouraging child to go into bathroom and lock door so father does not know what victim is doing — while sentencing judge had strong suspicions that victims in charge 2 and 3 did expose themselves in some way judge could not be satisfied beyond reasonable doubt on basis of conversations — offending not dealt with on basis it was one-off period of offending which ended 9 years ago — charge 4 was of serious nature — while percentage of category 5 files was minimal compared with category 1 files seriousness of category 5 images possessed is not reduced — no evidence offender possessed images for sale or passed them on — still serious example of offence of possession — mental condition — s 16A(2)(m) — psychologist reported three suicide attempts within days of being charged with offences — offender had long history of exposure to traumatic events in work — other psychologist was of view that offender ceased further attempts to solicit following offences in 2011 which is at odds with admissions in record of interview — finding did not lead to reduction in assessment of overall risk as was still rated as moderate risk factor — offender is motivated to undergo treatment and achieve change — offender has commenced on early steps to rehabilitation — offender needs further treatment for mental health and in relation to sexual offending — term of imprisonment will weigh more heavily on offender than someone without offender’s condition — serious risk term of imprisonment will have adverse impact on mental health exacerbated by impact of media reporting — despite mental health providing context within which offending occurred sentencing judge not of view that there is causal connection between mental health and offending such that moral culpability is reduced — sentencing judge not of view that mental health of such severity at offending or now that sentencing judge is required to reduce weight given to general deterrence — COVID-19 — offender would be subject to 14 day quarantine — offender found first 8 days of quarantine difficult and isolating — term of imprisonment during pandemic would lead to increased anxiety as to not only own health but health of family — current low numbers of infection in community does lessen impact — extra-curial punishment — weight to be given to extra-curial punishment depends on circumstances including nature of punishment and impact on offender — reporting has been inaccurate and inflammatory — inaccurate reporting has had some impact on mental health and will increase burden of imprisonment — other aspects of extra-curial punishment are all factors which would have arisen through nature of offending or were already taken into account through weight given to deterioration in mental health and need for ongoing rehabilitative support on release — general deterrence — s 16A(2)(ja) — other like-minded individuals must know engaging in such serious criminality will result in significant punishment — need to deter others from committing such offending — in offending involving child abuse material subjective circumstances must not be allowed to overshadow objective seriousness — rehabilitation — s 16A(2)(n) — requirement to have specific regard to rehabilitation does not override requirement that sentence be of severity appropriate in all circumstances — offender sentenced to 12 months’ imprisonment to be released on recognisance release order after serving 5 months
  • 5 November 2020 —

    DPP v Kawecki [2020] VCC 1751 — dishonesty offences — nature and circumstances — guilty plea — contrition — mental condition — general deterrence — specific deterrence — parity

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    sentence — 2 counts of engaging in dishonest conduct in relation to financial product in course of carrying on financial services business offence contrary to s 1041G of Corporations Act 2001 (Cth) — nature and circumstances — s 16A(2)(a) — submitted applications for shares and table of applications for shares of two companies containing false or misleading information about beneficial holders of shares — benefit received was $47,700 — actions were not critical to listing of companies but offender did not know that at the time — towards lower end of objective seriousness— guilty plea — s 16A(2)(g) — pleas occurred at earliest possible opportunity — type of prosecution would be complex and protracted through need to prove various matters and call up to 26 witnesses to do so — contrition — s 16A(2)(f) — pleas are evidence of remorse — letters offender wrote to ASIC are evidence of remorse — mental condition — s 16A(2)(m) — frequently people invest because investment is recommended by persons whose judgment they trust — offenders symptoms of ADHD played part in offending — willingness to perform dishonest acts was influenced by condition — general deterrence — s 16A(2)(ja) — offences are hard to detect and prove — investigation was long and expensive — ASX relies on accuracy of shareholder details provided by companies — unrealistic to expect company or ASX to investigate each application as to validity of entity especially its address — general deterrence tempered by effect of ADHD — many persons in community would not identify with offender due to disorder — deterrence not tempered by publicity received in financial publications — if case receives further publicity then it simply fosters purpose of general deterrence — specific deterrence — s 16A(2)(j) — despite proceedings banning from providing financial services and attempts to educate themselves on obligations offender remains involved with many companies trusts and other financial entities — remains some need for specific deterrence — parity — Ekman was involve in similar conduct — Ekman has not been charged with criminal offences or received banning order — Ekman is not co-offender in proceedings — principle cannot apply — offender fined $15,000 on each charge for total of $30,000
  • 22 October 2020 —

    DPP v Taleb [2020] VCC 1699 — tobacco importation offences — nature and circumstances — guilty plea — rehabilitation — delay

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    sentence — importing tobacco products with intention of defrauding revenue contrary to Commonwealth Customs Act 1901nature and circumstances — s16A(2)(a) — amount of revenue defrauded by substitution was $1,547,000 — offending was serious — role was necessary and important one — offender collected tobacco goods under bond and took them to others where illegal substitution was made — while offender was not organiser through dealings with customs broker offender knew what was being imported and was prepared to assist in smuggling large quantity of tobacco — common sense inference from involvement is to offender made or expected some financial gain — guilty plea — s 16A(2)(g) — guilty plea while late has high utilitarian value — community has been saved cost and inconvenience of trial — in times where jury trials have been suspended in Victoria for many months offender has facilitated course of justice to additional degree — rehabilitation — s 16A(2)(n) — living in state of uncertain suspense has caused offender considerable distress — by leading law-abiding life since offending offender has substantially if not fully accomplished rehabilitation — delay — prosecution was not responsible for delay and to large degree offender caused it themselves — delay is nevertheless significant mitigating factor — offences against revenue are not victimless crimes — because of potential financial rewards and difficulty of detection general deterrence is important — offender sentenced to 16 months’ imprisonment to be served by recognisance release order — s 6AAA — but for plea of guilty offender would have been sentenced to 18 months’ imprisonment to be released on recognisance after 8 months
  • 21 October 2020 —

    DPP (Cth) v Wallis [2020] VCC 1695 — dishonesty offences — nature and circumstances — mental condition — family and dependents

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    sentence — dishonestly obtain financial advantage by deception from Commonwealth entity offence contrary to s 134.2(1) of Commonwealth Criminal Code nature and circumstances — s 16A(2)(a) — offender lodged form purported to be signed by Hogg who received Age Pension — offender nominated themselves as payment nominee — between 5 October 2010 and 9 July 2018 offender received Hogg’s Age Pension without any entitlement — offender dishonestly obtained $174,618.90 from Department of Human Services — offending took effort and cunning to establish — offender needed to lie to Department repeatedly to continue payment — social security frauds provide heavy burden for taxpayers — undermines integrity of social security system and can demonise needy in society — mental condition — s 16A(2)(m) — offender has long complex mental health history interlinked with drug abuse which started at early age — sentencing judge took disadvantage and turbulence of youth and adolescence into account in mitigation of sentence — money derived from offending was used to perpetuate drug addiction and sustain modest lifestyle — offender has been sexually abused by drug dealer in excess of 20 occasions — psychologist opinion is that mental health would deteriorate if offender was incarcerated as it would inevitably trigger past trauma — family and dependents — s 16A(2)(p) — offender is very concerned about daughter’s ability to cope and thrive in absence — given connection to and intermittent residence with offender’s mother sentencing judge unable to find that this is a case where hardship to daughter is mitigating circumstance — inability to provide support and care will weigh heavily on offender’s own mind — offender sentenced to 18 months’ imprisonment to be released on recognisance release order after 6 months
  • 12 October 2020 —

    DPP v Jirjees [2020] VCC 1637 — bribery of public official — nature and circumstances — mental condition — antecedents — rehabilitation

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    sentence — bribery of Commonwealth public official — nature and circumstances — s 16A(2)(a) — offence is by its nature serious offence — Australian border security depends on integrity of Customs officers who are sentinels of system — bribery and corruption of public officials is an anathema to rule of law and good government — bribe proposed as part of wider plan of criminal conduct — offender proposed ongoing illicit relationship where Commonwealth official would become integral player in proposed serious ongoing criminal conduct — crime was entirely financially motivated — with proposed imports of over 200 kg of tobacco per week offender sought to evade between approximately $218,000 to $270,000 in excise duty per week — offender planned meeting with official and chose target with whom they were familiar — offender chose to exploit what they believed was a friendship with official — no money or benefit was actually paid or even specified — offender did not propose follow-up meeting or undertake follow-up contact — offender did not engage in proposed wider criminal conduct of evading excise duty — moral culpability is high — no one else involved in scheme — sentencing judge did not accept that moral culpability was in any way influenced by offender’s upbringing or by any misunderstanding that corruption and bribery is necessary part of everyday life in Australia — after issue of four infringement notices in relation to applicable duties offender was not dissuaded from further conduct attempting to avoid payment of applicable duties in future importing of tobacco — mental condition — s 16A(2)(g) — offender did not qualify as meeting criteria for PTSD but did present with significant features of PTSD — offender’s cognitive and adaptive functioning is within range of mild to borderline intellectual disability — antecedents — s 16A(2)(m) — sentencing judge cannot ignore personal circumstances background and upbringing though these matters play much lesser role in sentencing consideration — rehabilitation — s 16A(2)(n) — very good prospects of rehabilitation — offender has solid work history and solid pro-social support of family — determination displayed to get to Australia to make better life for themselves — offender had worked hard through adversity to achieve better life — offender sentenced to 20 months’ imprisonment to be served via recognisance release order
  • 9 October 2020 —

    DPP v Tran (Thi Thuy Tam) [2020] VCC 1631 — drug importation offence — nature and circumstances — guilty plea — contrition — antecedents — rehabilitation — parity

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    sentence — trafficking commercial quantity of border controlled drug contrary to Commonwealth Criminal Code nature and circumstances — s 16A(2)(a) — offender collected tickets (one kilogram lots) of heroin three times delivered them to buyers collected payment for them and delivered cash for payment of heroin for Tran — offender was also involved in providing 1 ounce sample of heroin to potential buyer — quantity of drugs was substantial — wholesale value of 3 tickets of heroin was around $600,000 — quantity of drugs trafficked was 1.56 times commercial quantity — offender engaged in commercial activity which involved repeated acts of trafficking — offender played integral role in enterprise — as Tran’s trusted offender had an important position in hierarchy — Tran shared syndicate’s supply and pricing information with offender and trusted offender to collect and deliver substantial qualities of drugs and cash — offender knew Tran was operating large scale drug importation and trafficking business — offending involved cover meetings to collect the heroin coordinate sale and to deliver drugs and collect cash — offender has no explanation for involvement other than to say they were helping their friend — there are no extenuating circumstances — common sense explanation is offender did so for opportunity to share in substantial profits — guilty plea — s 16A(2)(g) — early guilty plea has significant utilitarian value — positive response to time in custody is evidence of remorse — contrition — s 16A(2)(f) — degree of remorse is qualified by false denials and evasive answers to police and efforts to play down offending and implausible contention they were paid only $50 each time for involvement — antecedents — s 16A(2)(m) — prior convictions for drug related offending are relevant — explanation given by offender is highly improbable — while weight attached to convictions is to be reduced because of passage of time offender’s attempt to again understate involvement is relevant to assessment of remorse and prospects of rehabilitation — rehabilitation — s 16A(2)(n) — taking into account creditable progress in custody towards reformation and desire to be good mother prospects of rehabilitation considered reasonable — parity — co-offender Zainal’s offending was more serious — Zainal able to point to genuine extenuating circumstances which explained desperate need for money — co-offender Goh’s offending was less serious — Goh’s progress to reformation in prison was exceptional — offender sentenced to 10 years’ and 6 months imprisonment with 7 year non-parole period — s 6AAA — but for plea of guilty offender would have been sentenced to 13 years’ 6 months imprisonment with 9 year and 6 month non-parole period    
  • 7 October 2020 —

    R v Davison [2020] ACTSC 272 — child exploitation offences — nature and circumstances — mental condition — contrition — general deterrence — guilty plea

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    sentence — possessing or controlling child abuse material contrary to s 474.22A of Commonwealth Criminal Code nature and circumstances — s 16A(2)(a) — no suggestion of distribution of material or any profit being obtained from it — number of images is significant as is nature of content — not clear for how long material was possessed — objective seriousness of offending is at about medium objective seriousness — mental condition — s 16A(2)(m) — offender suffers from major depressive disorder and ongoing anxiety — offender takes antidepressants — according to report by psychologist offender would be ill-equipped to deal with social challenges of incarceration — contrition — s 16A(2)(f) — offender does not believe they have done anything illegal but pleaded guilty on legal advice — offender apparently expressed belief that actions had not caused any negative impact — general deterrence — s 16(2)(ja) — cases like this call out for significant sentences — all persons must be discouraged from fulfilling sexual needs through images of children — children are not pawns or playthings for sexual gratification of adults — it is difficult to express more abhorrence than in respect of crimes involving children their manipulation and their degradation — guilty plea — s 16A(2)(g) — offender entitled to discount from plea of guilty — appropriate discount is 25% — offender sentenced to 9 months’ imprisonment to be released after serving period of 3 months upon recognisance release order
  • 7 October 2020 —

    Kaurasi v The Queen (Cth) [2020] NSWCCA 253 — drug importation offence — guilty plea — nature and circumstances — contrition — rehabilitation

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    appeal against sentence — importing commercial quantity of border controlled drug contrary to s 307.1(1) Commonwealth Criminal Code — original sentence imposed 12 years’ imprisonment with 9 year non-parole period — offence relates to 42.941 kg of pure cocaine — guilty plea — s 16A(2)(g) — Xiao error — timing of plea of guilty for both Commonwealth and State offences is largely determinative of objective or utilitarian value — that feature of offender’s plea attracts arithmetical sentencing discount — generally accepted that early plea of guilty for Commonwealth offence will attract 25% discount — plea was entered at earliest reasonable opportunity — enquiry into offender’s current attitude to offending as part of resentencing comprehends considerations of contrition and remorse — assessment does not attract arithmetical discount — while lack of remorse or contrition may be most material factor influencing sentence it is important to ensure that weight those considerations might attract are not treated in way that increases or diminishes utilitarian value of plea by some arithmetical measure — if offender has demonstrated contrition involving facilitation of course of justice this fact may be taken into account — there is no bright line test for distinguishing between objective and subjective considerations so factors may overlap — when sentencing Commonwealth offender who enters plea at or towards end of process it is appropriate to take into account sequenced nature of scheme and participatory role expected of defendants when determining appropriate discount for plea’s utilitarian benefit — nature and circumstances — s 16A(2)(a) — objectively grave offence concerning amount of cocaine in excess of 20 times commercial quantity — offender was responsible for all aspects of logistics connected with shipment — offender was well aware of amount of cocaine they shipped to Sydney — involvement extended for number of weeks prior to shipment — only reasonable inference is that offender involved himself in criminality of such high order because of significant profit to be made — contrition — s 16A(2)(f) — not persuaded offender is remorseful for crime as opposed to regretful at being apprehended for committing it — offender maintained they had no knowledge of cocaine cargo and had simply been reckless in taking up too quickly what seemed to be good business proposition — agreed facts establish falsity of offender’s contentions — offender claimed to have little understanding of seriousness of conduct which cannot be accepted from person of 29 years employed in role which required them to regularly travel internationally — rehabilitation — s 16A(2)(n) — although absence of genuine and complete remorse can be inconsistent with offender having good future prospects offender’s prior good character and history of solid employment point to sound prospects of rehabilitation — appeal allowed — sentence quashed — offender sentenced to 11 years’ and 3 months imprisonment with 8 year and 5 month non-parole period  
  • 7 October 2020 —

    DPP v Goh [2020] VCC 1603 — drug importation offences — nature and circumstances — guilty plea — hardship to offender

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    sentence — trafficking marketable quantity of heroin — offence relates to 784.2g of pure heroin — nature and circumstances — s 16A(2)(a) — quantity and value of drugs imported was significant — wholesale value was $155,000 — street value around 3 to 4 times greater — quantity of drugs trafficked was 3.14 times marketable quantity — offender’s involvement was important — offender worked as international courier for sophisticated transnational drug syndicate — offender communicated with co-offenders to complete the sale — offender was entrusted with responsibility to deliver heroin and collect payment — there was reasonable degree of planning coordination and sophistication to offending which involved international travel and separation of Malaysian side from local side to reduce risks of detection — not satisfied that offender was necessarily senior member of cohort — in absence of contrary sentencing judge could only conclude offender expected some financial reward — guilty plea — s 16A(2)(g) — guilty plea has significant utilitarian value — plea is also evidence of acceptance of responsibility for actions and remorse — hardship to offender — isolation from family and friends has made prison harder but because offender came to Australia to commit serious crime intending afterwards to return home little weight can be attributed to it — COVID-19 has caused increased anxiety and concern for all in community including persons in prison — offender sentenced to 6 years’ imprisonment with 3 year non-parole period — s 6AAA — but for plea of guilty offender would have been sentenced to 8 years’ imprisonment with 5 year non-parole period
  • 2 October 2020 —

    Assie v The Queen [2020] NSWCCA 249 — dishonesty offences — nature and circumstances — parity — contrition — hardship to offender — general deterrence

     

     

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    appeal against sentence — conspiring with four other persons with intention of dishonestly causing loss to Commonwealth contrary to s 135.4(3) of Commonwealth Criminal Code — dealing with money in excess of $100,000 reasonably suspected of being proceeds of crime contrary to s 400.9(1) of Commonwealth Criminal Code — original sentence imposed 5 years’ imprisonment with 3 year and 3 month non-parole period — nature and circumstances — s 16A(2)(a) — sections of Centrelink claims forms were completed by offender and husband in support of false claims for carer payments — four customers were introduced to offender and husband and carried out role as customers of welfare fraud and co-conspirators in conspiracy — conspiracy was sophisticated — those involved were committed to achieving fraud on Commonwealth — neither offender nor husband were deterred from commitment to achieving objective by seizure of large amount of cash during conspiracy — offender was equally culpable with husband and both were architects of fraudulent scheme even if in early stages of conspiracy husband played more dominant role — offender’s role was central to achieving perpetration of welfare fraud and sole motivation was greed — offender received at least $11,000 for role in conspiracy — sentencing judge accepted that having been married to first cousin by arrangement at age of 18 would have been productive of significant power imbalance in marriage — offender’s limited formal education meant they relied on husband for designing formal aspects of scheme and operation — parity — different and more limited roles played by customers in conspiracy by agreeing to utilise services offender and husband offered as facilitators and organisers of welfare fraud — unlike offender each co-conspirator entered early plea of guilty and two of them had additional discount applied for assistance to authorities — despite evidence of family violence sentencing judge satisfied that offender exercised choice in involving themselves in conspiracy evident from fact that offender continued offending behaviour after husband’s death — hardship to the offender — s 16A(2)(m) — offender’s experience of full time custody as woman in her 60s with concerns for three intellectually disabled children who remain in offender’s care would make experience as sentenced prisoner more onerous — general deterrence — s 16A(2)(ja) — essential that aggregate sentence reflect need for general deterrence — sentence neither unreasonable nor plainly unjust — nothing in case is even faintly suggestive that offender suffered any injustice in sentencing process — leave to appeal refused — appeal dismissed
  • 2 October 2020 —

    Cheng v R [2020] NSWCCA 252 — drug importation offences — nature and circumstances — cumulative and concurrent sentences — non-parole period

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    appeal against sentence — 1 count of importing commercial quantity of methylamphetamine contrary to s 307.1(1) Commonwealth Criminal Code — 1 count of dealing with proceeds of crime believing it to be proceeds of crime contrary to s 400.6(1) Commonwealth Criminal Code — additional state offences — offence relates to 72517.1g pure methylamphetamine — original sentence imposed 20 years’ imprisonment with 14 year non-parole period — nature and circumstances — s 16A(2)(a) — quantity of drugs involved necessitated finding of significant objective seriousness — offender was aware of nature and extent of operation including identity of drug method of concealment and means of importation — cumulative and concurrent sentences — it cannot be said that any error is disclosed in sentencing judge’s finding that criminality on State offences warranted significant period of additional imprisonment to importation offence — criminality on each count was distinct albeit part of same criminal enterprise and no specific error identified — non-parole period — in circumstances where extent of variation is matter for sentencing judge there is no requirement to vary statutory ration even if special circumstances are found — offender was convicted of serious offences carrying life sentence — leave to appeal against sentence granted — appeal dismissed
  • 2 October 2020 —

    R v Watson (No 2) [2020] NSWDC 582 — child exploitation offences — mental condition — nature and circumstances — contrition — specific deterrence — general deterrence — rehabilitation

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    resentence — 1 charge of accessing child pornography material contrary to s 474.19(1)(a)(i) Commonwealth Criminal Code — 1 charge of causing child pornographic material to be transmitted using a carriage service contrary to s 474.19(1)(a)(iii) Commonwealth Criminal Code — additional State offences — original global sentence imposed 3 years’ imprisonment to be released on recognisance release order after 1 year and 6 months imprisonment — sentence was appealed to Court of Criminal Appeal and Commonwealth charges were remitted to District Court for resentencing — mental condition — s 16A(2)(m) — offender has mild intellectual disability with symptoms of Borderline Personality Disorder — offender has suffered some deprivation in formative years given disadvantageous and traumatic background — offender’s mental health contributed to offending and offender has limited insight and self-regulation skills — nature and circumstances — s 16A(2)(a) — objective seriousness of offending involved offender accessing child pornography material over period of just over two years — material was accessed on 3 different devices and comprised 1 video and 34 images — while offending was not aberration or isolated incident number of images was not great by comparison to other cases — while it constituted serious offending given small number of images involved it was below mid-range for offence pursuant to that section and in upper part of low range of objective seriousness — that material subject to transmission constituted fantasies of offender is irrelevant to assessment of objective seriousness of offending — objective seriousness fell below mid-range for offence under that section — contrition — s 16A(2)(f) — whilst offender expressed remorse in letter to court and pleaded guilty at early opportunity offender failed to demonstrate insight into offending conduct and acknowledge responsibility for it — specific deterrence — s 16A(2)(j) — specific deterrence does have a role to play as offender must understand that if they engage in similar criminal conduct in the future they will face increasingly lengthy periods of imprisonment — general deterrence — s 16A(2)(ja) — based on offender’s mental health issues and diagnoses together with disadvantageous background offender is not appropriate vehicle for general deterrence — rehabilitation — s 16A(2)(n) — offender has complex medical and psychological background which will require great deal of support to enable any rehabilitation — risk of re-offending difficult to assess — nature of offender’s background and fact of criminal conduct over 2 years suggests there is relatively high risk of offender re-offending in absence of adequate support systems in place — offender re-sentenced to 2 years’ and 3 months imprisonment as offender had already served term of imprisonment longer than sentence imposed no recognisance release order imposed
  • 2 October 2020 —

    R v Ibbetson [2020] QCA 214 — fraud offences — nature and circumstances — mental condition — family and dependents — delay

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    appeal against sentence — 9 counts of obtaining financial advantage by deception contrary to s 134.2(1) Commonwealth Criminal Code — 2 counts of attempting to obtain financial advantage by deception contrary to ss 11.1 and 134.2(1) Commonwealth Criminal Code — original sentence imposed 2 years’ and 6 months imprisonment with offender to be released on recognisance release order after 10 months — nature and circumstances — s 16A(2)(a) — offences committed over substantial period of time and there was element of repetition or persistence in offender’s behaviour — mental condition — s 16A(2)(m) — report from psychiatrist noted that offender had no known medical illness to explain behaviour and no past psychiatric history — offender diagnosed with gambling addiction with secondary diagnoses of adjustment disorder with mixed anxiety and depressive problems — sentencing judge considered dated material tendered in favourable light — Discharge Summary is essentially unremarkable and contains no further information other than that offender had suicidal ideation on particular date — offender’s family and dependents — s 16A(2)(p)— offender argued effect that incarceration had on daughter should be taken into account particularly in context of COVID-19 pandemic — no evidence has been adduced about actual effect on daughter but it is accepted that personal visits have been restricted — restrictions have affected entire prison population and families and imposition occurred after sentence imposed — Court’s function is to consider sentence imposed by primary judge and circumstances which have arisen post-sentence are not relevant consideration when considering merits of appeal — as possible hardship has occurred post-sentence and affects prison population as whole it could not amount to exceptional circumstances that should have been taken into account by sentencing judge — delay — in offender’s case complaint had been laid 12 months after they had been asked to participate in interview and indictment was presented 12 months after that — subsequent delay was not due to DPP or Court but was indulgence to offender as they took some time to engage legal representation — application to adduce further evidence refused — application for leave to appeal against sentence refused
  • 1 October 2020 —

    DPP v Beck [2020] VCC 1590 — child exploitation offences — nature and circumstances — character — mental condition — contrition — physical condition — general deterrence

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    sentence — using carriage service to transmit indecent communications to a child under 16 — additional State offences — nature and circumstances — s 16A(2)(a) — offender was friend of father of the victim — offender was 22 years older than victim befriended her and abused her trust — offending involved level of pre-planning — offender took victim to remote location to offend against her and had a condom at the ready — offending can be characterised as predatory — offender attended victim’s school and gave her mobile phone in order to communicate secretly — offender sent victim multiple highly sexualised messages and gratuitous images of exposed penis — offending is serious and moral culpability is high — character — offender’s ex-partner wrote character reference — offender has battled with kidney disease but has struggled with depression — mental condition — s 16A(2)(m) — offender diagnosed with persistent depressive disorder — no submission made that Verdins principle applied — contrition — s 16A(2)(f) — offender told psychologist victim had pursued them and they struggled to take greater responsibility for behaviour — offender did recognise behaviour was wrong and was grappling with feelings of shame — psychologist reports offender gratified by attention of victim and engaged in cognitive distortions which allowed them to view victim as equal and consenting partner — psychologist report found offender fell into low risk category for sexual recidivism and appeared to show good prospects for rehabilitation — physical condition — s16A(2)(m) — COVID-19 — offender suffers end-stage kidney disease — condition will not improve unless offender receives another successful kidney transplant — offender requires lengthy dialysis sessions to control symptoms and keep them alive — offender’s doctor reports that offender is reliant on treatment to keep them alive but with dialysis had some quality of life — offender’s risk of catching disease no greater than average person but if infected risk of becoming seriously ill was greater — although kidney disease requires extensive hours on dialysis and can be managed in custodial setting — COVID-19 is complicating issue — if offender was imprisoned long hours required to spend at hospital for dialysis would subject offender to quarantine transfer — Corrections Victoria unable to say if restrictions would be lifted when Victoria moves to stage 3 — any sentence must be heavily moderated because of ill health and extensive hours of dialysis and the context of COVID-19 — general deterrence — s 16A(2)(ja) — law imposes absolute prohibition on sexual contact with children to protect them from harmful premature sexual activity — adults who transgress prohibition must expect stern punishment — offender sentenced to 24 months’ imprisonment with 10 month non-parole period for State offences — offender sentenced to 9 months’ imprisonment with 2 month non-parole period for Commonwealth offences to commence on expiration of non-parole period for state offences — s 6AAA — but for plea of guilty global sentence imposed would have been 5 years’ with 3 year non-parole period
  • 1 October 2020 —

    DPP v Murphy [2020] VCC 1570 — child exploitation offences — general deterrence — specific deterrence — physical condition — mental condition — rehabilitation — hardship to offender — delay — contrition

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    sentence — using carriage service to groom person under 16 years of age contrary to s 474.27(1) Commonwealth Criminal Code general deterrence — s 16A(2)(ja) — general deterrence is paramount and immediate term of imprisonment is ordinarily warranted — clear public interest given this kind of offending can be difficult to detect and appears to be prevalent — children must be protected from conduct that would otherwise inappropriately sexualise them at age where they may be ill-equipped to protect themselves or respond either appropriately or in own interests — specific deterrence — s 16A(2)(j) — offender was well aware of victim’s stated age — conduct no less reprehensible because apparent victim was lure for blackmail — somewhat unusual circumstance for offence — it makes it no less serious — conduct appears predatory in terms of request to meet and arrangements to do so and communications were of relatively high frequency in two month period in which they were conducted — communication with apparent victim involved graphic and explicit content — offender desisted only when they believed they were victim of blackmail threat not realising this would then lead to police investigating offender’s illicit activity — physical condition — s 16A(2)(m) — offender suffered at young age — offender was victim of physical assault in 2017 further deteriorating level of functioning — mental condition — s 16A(2)(m) — offender’s cognitive function within mildly intellectual disability range — offenders ability to maintain degree of independent function is largely consequence of familiarity with environment — report found central factor to offending appeared opportunistic and reactive as opposed to being considered or organised — cognitive profile allows offender to appreciate right from wrong at simplistic level and capacity to make informed decisions which are truly reasoned are described as basic — offender lacks ability to fully appreciate consequences for actions on others and cannot be readily criticised for lack of victim empathy or insight — rehabilitation — s 16A(2)(n) — psychologist report raised concerns about prospects of rehabilitation — offender recommended for referral to intensive sex offender treatment program — psychologist concerned offender presents with high risk of reoffending which may be mediated by involvement or focus in alternative activities or employment — there has been both sanction and deterrence from court process — hardship to offender — offender will respond well to structure and predictability but due to poor non-verbal reasoning and likelihood of responding inappropriately offender likely will be irritating to others placing them at risk — cognitive deficits would make offender vulnerable to exploitation or manipulation and likely to experience heightened degree of psychological distress — all limbs of Verdins are engaged — delay — court processes whilst natural have meant that matter has been hanging over head for 3 years and assessment would indicate offender is particularly vulnerable to stressors — contrition — s 16A(2)(f) — while remorse is less apparent factor carries less weight in terms of assessment of low cognitive functioning — sentence — report indicates concern about ability to comply with CCO due to barriers in terms of physical health and intellectual function — offender sentenced to 10 months’ imprisonment to be served by recognisance release order — s 6AAA — if not for plea of guilty offender would have been sentenced to 18 months’ imprisonment with 10 months imprisonment prior to release on recognisance release order    
  • 21 September 2020 —

    R v Yavuz (No 2) [2020] ACTSC 248 — drug importation offence — nature and circumstances — mental condition — character — antecedents — guilty plea — contrition — parity — COVID-19

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    sentence — jointly importing a commercial quantity of a border-controlled drug offence contrary to s 307.1(1) and s 11.2A of Commonwealth Criminal Code — offence relates to 1771g of pure MDMA — nature and circumstances — s 16A(2)(a) — during offending period offender was in custody for unrelated but similar offending — Jabal provided funding to offender at least some of which was used to finance importations — offender was involved in joint commission to import at least commercial quantity of prohibited drug into Australia from about July 2017 — offender was aware of identity and role of overseas provider of consignments — offender was common link between Poulakis and Omari and Jabal — offender facilitated communication and degree of cooperation — offender was aware of decision to use ANU campus as delivery address — offender tasked Omari with communicating to Jabal that he wanted to recover $50,000 — offender’s authority and influence were such that Jabal immediately complied with demand for money —offender expected and received regular updates about status of second consignment — role of offender must be regarded as significant — offender not aware of precise quantity being imported but that they were involved in joint enterprise to import at least a commercial quantity — character — s 16A(2)(m) — six character references provided — it is not immediately apparent how statement of impeccable character from first reference squares with previous offending — references taken into account on sentence — prospects of rehabilitation must remain guarded at this time — antecedents — s 16A(2)(m) — offender actively participated in joint commission to import border-controlled drug while serving substantial term of imprisonment for multiple offences of similar but less serious nature — commission of offence while in custody or on conditional liberty is an aggravating feature on sentence — prior convictions demonstrate that present offence is not aberration or isolated offence — offending was motivated by financial gain — offender was involved in importation of drugs for profit — double counting must be avoided — guilty plea — s 16A(2)(g) — until recently in ACT offenders were not entitled to any discount on sentence for the utilitarian benefit of plea — amended s 16A(2)(g) puts beyond doubt that utilitarian benefit must be taken into account — co-offenders entered pleas at broadly same time as offender and pleas had similar utilitarian value — offender made severance application on day trial was scheduled to begin — plea although not entered at early opportunity had significant utilitarian benefit in that it prevented need to expend significant resources on lengthy trial — 15% discount allowed — contrition — s 16A(2)(f) — hearsay statements or statements made by offender which are not supported by offender giving sworn evidence should be treated with considerable caution — courts do not simply disregard evidence of remorse if offender does not go into witness box and give evidence — sentencing judge noted the remorse expressed in letter by offender — sentencing judge did not ascribe significant weight to the remorse — parity — Poulakis and Yavuz involvement in importation was more significant than that of Omari or Jabal — offender directed activities of syndicate — while there is broad equivalence in terms of hierarchy and role as between Poulakis and offender, offender had somewhat greater role in directional type behaviour — COVID-19 — it is necessary in individual case to take into account both health consequences and social consequences — AMC is managing health risks appropriately at this stage — no evidence before Court that offender is in high-risk category in relation to physical health consequences — social consequences are nevertheless of significance — while availability of limited social visits lessens social consequences of COVID-19 they do remain constrained and may well be suspended again — there is additional hardship attached to imprisonment due to COVID-19 pandemic — offender sentenced to 8 years’ and 6 months imprisonment with 5 year and 1 month non-parole period
  • 14 September 2020 —

    R v Yavuz [2020] SASCFC 87— drug importation case — nature and circumstances — guilty plea — totality — personal deterrence

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    appeal against sentence — conspiring to import cocaine contrary to ss 11.5(1) and 307.1(1) Commonwealth Criminal Code — original sentence imposed 9 years’ and 6 months imprisonment with 3 year and 6 month non-parole period — appeal against sentence by Yavuz heard together with crown application for permission to appeal against sentence — nature and circumstances — s 16A(2)(a) — expectation of conspirators does bear on motives and subjective criminality but does not provide sound basis on which to objectively evaluate seriousness of offending — evidence points to inference that larger amount than 2 kilograms was planned to be imported — sentencing judge found no more than that planned importation was of quantity not less than 2 kilograms — offender was fully engaged in conspiracy to import cocaine — co-offender Kola was initiator principal and controlling mind of the conspiracy — offender shouldered burden of communication with Parise to shield Kola — period of time over which conspiracy subsisted was not long and mainly result of delay — offender’s expressed hope to make profits is important but in absence of clearer evidence as to what conspiracy was realistically likely to deliver offender’s statements may have been no more than expression of vain or deluded hope — guilty plea — s 16A(2)(g) — offender entitled to substantial reduction in sentence because plea was entered in Magistrates Court before committal — there is no prescribed hierarchy of reductions — some judges may have reduced sentence by more than 20% but reduction not manifestly inadequate — totality — sentencing judge considered that sentence commenced at expiration of non-parole period of State sentence — no greater degree of concurrency was required by reason of connection between cannabis offences and conspiracy — even though offender and co-offender were both involved in cannabis offending which financed cocaine conspiracy it nonetheless marked significant escalation in offending — overall sentence was not in any way crushing — sentence allowed adequate scope for rehabilitation — overall non-parole period of 76% not disproportionate for serious and persistent national and international high-value drug trafficking — specific deterrence — s 16A(2)(j) — offender’s involvement in commercial drug enterprises means that personal deterrence is important factor in sentencing — even though conspiracy persisted over short period of time it had to be considered in light of cannabis offending which occurred at same time — cannabis offending limited scope for more lenient rehabilitative sentence      
  • 11 September 2020 —

    Hudson v The Queen [2020] ACTCA 46 — carriage service offences — manifest excess — non-parole period — rehabilitation

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    appeal against sentence — 2 counts of using carriage service in a way that reasonable persons would regard as being harassing offence contrary to s 474.17(1) of Commonwealth Criminal Code — additional state offences — original sentence imposed 4 years’ and 2 months imprisonment with a 33 month non-parole period — manifest excess non-parole period — s 19AC — because two offences Commonwealth offences, and because aggregate sentences for these offences was less than 3 years, not open to sentencing judge to set single non-parole period applicable to all offences encompassing both Commonwealth and Territory offences — re-sentence — there may well have been a strong argument offender had been dealt with leniently — court can see no basis upon which sentences could be described as plainly unjust — no different aggregate head sentence should be imposed — rehabilitation — s 16A(2)(n) — since original sentence imposed offender appears to have continued to immerse themselves in courses with apparent aim of self-betterment, including specific steps to address their tendency to violence and improve their prospects of rehabilitation — imposed 4 years and 2 months’ imprisonment with a 30 month non-parole period
  • 11 September 2020 —

    Jackson v The Queen [2020] NSWCCA 230 — drug importation offences — manifest excess — nature and circumstances of the offence — age — general deterrence

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    appeal against sentence — importing a commercial quantity of a border controlled drug offence contrary to s 307.1(1) of the Commonwealth Criminal Code, deal with money which is and is believed to be proceeds of crime valued at $50,000 or more offence contrary to s 400.5(1) of the Commonwealth Criminal Code — offences relate to 547.71kg of cocaine and $60,000 in cash respectively — original sentence imposed 19 years’ and 6 months imprisonment with a 12 year and 6 month non-parole period — manifest excess nature and circumstances of the offence — s 16A(2)(a) — as correctly identified by sentencing judge, this is extremely serious example of serious crime — in appropriately characterising role of offender, sentencing judge is not bound by label ascribed to offender’s role by counsel — Crown described role of offender as “principal in Australia”, which is an accurate description — offender chose persons to work on importation, dealt with principals overseas, took possession of drugs, handled money of behalf of syndicate, determined amount paid to co-offenders, responsible for holding $12 million for principals for first round of drugs and holding 300kg of drugs for what would become second sale — characterisation by learned sentencing judge open and correct, if not understated — offender unable to point to any identifiable error in reasons provided by sentencing judge — age — s 16A(2)(m) — offender 63 years old at time of offence and 64 at time of sentence — more advance age may render imprisonment more onerous than for someone younger — age may be relevant that offender should have opportunity for rehabilitation in community at conclusion of sentence — where effect of sentence is that unlikely offender will have any meaningful life after its conclusion, this may be an important consideration in sentence to be imposed — at 76, when offender first eligible for parole, he will likely have many years ahead of him in which to establish his rehabilitation — general deterrence — s 16A(2)(ja) — this extremely serious offence involved more than 273 times the commercial threshold for necessary offence of this kind — there are reasons why general deterrence and need for punishment loom large — sentence imposed by sentencing judge neither plainly unjust nor unreasonable — leave to appeal granted — appeal dismissed
  • 4 September 2020 —

    Hong v The Queen [2020] NSWCCA 225 — drug importation offence — guilty plea — nature and circumstances — rehabilitation

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    appeal against sentence — attempting to possess commercial quantity of unlawfully imported border controlled drug — original sentence imposed 15 years’ imprisonment with 10 year non-parole period — offence related to nearly 25 kilograms of pure heroin — guilty plea — s 16A(2)(g) — sentencing judge gave 25% discount for facilitating administration of justice — nothing was said about utilitarian discount for plea of guilty — Xiao v R was decided 6 years later — nature and circumstances — s 16A(2)(a) — offender’s role fell between principal and courier — offender and co-offender were critical participants in actual importation of drugs but also in early stages of intended distribution — offender had been entrusted with responsibility of managing consignment of very large amount of heroin — offender was more senior of two offenders and of greater importance in drug operation — offender possessed important documents on arrival and communicated with Malaysia and Myanmar — rehabilitation — s 16A(2)(n) — offender has undertaken courses while in custody and been employed as a clerk — in December 2018 offender was found in possession of USB containing sensitive material linked to his work and violent pornography while imprisoned — USB of limited relevance in re-sentencing exercise — leave to appeal granted — appeal allowed — sentence quashed — offender sentenced to 14 years’ imprisonment with 9 year non-parole period
  • 28 August 2020 —

    Small v The Queen [2020] NSWCCA 216 — child exploitation offences — guilty plea — nature and circumstances of the offence — antecedents — contrition — rehabilitation

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    appeal against sentence — using carriage service to groom a person under the age of 16 years for sexual activity offence contrary to s 474.27(1) of the Commonwealth Criminal Code, using a carriage service to solicit child exploitation material offence contrary to s 474.19(1)(a)(iv) — additional state offences — additional offence of using a carriage service to transmit child exploitation material offence contrary to s 474.19(1)(a)(iii) taken into account pursuant to s 16BA — original sentence imposed 10 years’ and 6 months imprisonment with a 7 year non-parole period — guilty plea — s 16A(2)(g) — Xiao v R error identified — there is no good reason why a quantified discount would apply for the New South Wales offences but not the Commonwealth offences, to reflect the utilitarian value of the guilty plea — at time Xiao decided, s 16A(2)(g) of the Crimes Act 1914 (Cth) required sentencing court to take into account “if the person has pleaded guilty to the charge in respect of the offence – that fact” — S 16A amended so that since 20 July 2020 s 16A(2)(g) now provides that a sentencing court must take into account “if the person has pleaded guilty to the charge in respect of the offence: (i) that fact; and (ii) the time of the plea; and (iii) the degree to which that fact and the timing of the plea resulted in any benefit to the community or any victim of or witness to the offence” — in resentencing offence, this Court should apply s 16A(2)(g) in its present form which gives effect to aspects of the utilitarian value of a guilty plea as described in Xiao v R and Bae v R — offender’s guilty pleas entered at early stage of proceeding with effect of pleas of guilty that victim and other witnesses not required to give evidence at trial — utilitarian value to offender’s guilty pleas but did not reflect remorse or contrition on their part — guilty pleas entered in face of overwhelming Crown case against offender — any allowance for pleas to be confined solely to utilitarian value of pleas — re-sentence — nature and circumstances of the offence — s 16A(2)(a) — serious examples of offences of this type — offences involved a young and vulnerable girl who was subjected to sustained and predatory criminal communications from the much older offender for the purposes of the offender’s own sexual gratification — antecedents — s 16A(2)(m) — offender had significant prior history of offences of this type for which they had been sentenced on two separate occasions to significant terms of imprisonment — offender previously sentenced for 32 months’ imprisonment with a 21 month non-parole period for 4 counts of possession of child exploitation material and 5 counts of using a carriage service to transmit child exploitation material — offender bears all hallmarks of a hardened recidivist — contrition — s 16A(2)(f) — rehabilitation — s 16A(2)(n) — offender not demonstrated genuine remorse or insight and shown little interest in custodial rehabilitation programs — appears established and apparently intractable attitude of the offender — offender presents ongoing risk to community against background of earlier offending which has not deterred them from further serious crimes of this type — sentence — imposed 10 years’ and 4 months imprisonment with a 6 year and 11 month non-parole period
  • 28 August 2020 —

    Woods v The Queen [2020] NSWCCA 219 — drug importation offence — nature and circumstances — family and dependents — contrition — totality — rehabilitation — cumulative and concurrent sentences

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    appeal against sentence — 2 counts of importing marketable quantity of border controlled drug offences contrary to s 307.2(1) of Commonwealth Criminal Code — additional state offences — state offences —federal offences relate to 24.78g of MDMA and 14.05g of cocaine and 257.25g of MDMA respectively — original sentence imposed 7 years’ imprisonment with 5 year non-parole period —nature and circumstances — s 16A(2)(a) — Sequence 1 well below notional midrange in light of 5 separate importations over 2.5 years — offender principal organiser in Australia — importations were organised over dark net — some level of planning involved but parcels were addressed in offender’s own name and to home address — offending was done for financial gain — quantities were well above marketable quantity but well below commercial quantity — Sequence 20 was little less than notional midrange — offender was principal at Australian end and degree of organisation was similar to Sequence 1 — while weight of drug was only one factor offence was far more serious when regard is hard to role and fact that offender was no longer user of MDMA and amount imported — offender’s family and dependents — s 16A(2)(p) — offender was eldest of four children and one sister had intellectual disability — impact of incarceration on sister was taken into account — contrition — s 16A(2)(f) — there was some remorse in addition to early guilty pleas and admissions made to police — totality — same general principles should be applied in relation to overall sentence involving both federal and state components — primary judge either through miscalculation or inadvertence did not achieve ratio of non-parole period to head sentence for all sentences taken together which was substantially less than 75% — intention reflected in finding of special circumstances not given effect to — rehabilitation — s 16A(2)(n) — prospects of rehabilitation will be assisted if longer period on parole given than that provided by statutory ratio of 75% — cumulative and concurrent sentences — degree of accumulation between federal and state sentences required to reflect that criminality involved in federal importation offences does not entirely encompass criminality in state supply offences — need to impose sentence of appropriate severity in all circumstances while at same time giving effect to finding of special circumstances — leave to appeal granted — appeal allowed — original sentence quashed — offender resentenced to 6 years’ and 3 months imprisonment with 4 year and 3 month non-parole period
  • 26 August 2020 —

    Wilson v The Queen [2020] NSWCCA 211 — child exploitation offences — nature and circumstances — physical condition — general deterrence —guilty plea

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    appeal against sentence — using carriage service to transmit child pornographic material contrary to s 474.19(1) Commonwealth Criminal Code — using carriage service to procure person under 16 years of age for sexual activity contrary to s 474.26(1) Commonwealth Criminal Code — additional state offences — original sentence imposed 4 years’ imprisonment with 2 year and 4 months non-parole period — nature and circumstances — s 16A(2)(a) — material transmitted contained conversations and video footage indicating offender was active and willing participant in conduct — offender sentenced solely for transmission of text based conversations which meet definition of child pornography material and is of lesser seriousness than if material involved images of real children — transmission offence towards lower end of relevant scale — offender well understood criminality of behaviour — procurement offending was objectively serious as it involved actual plan to meet which offender by attendance was prepared to carry through — offences are very serious despite offending in Sequence 1 being towards bottom range of offending of that kind — not only was Sequence 2 most serious of offences but it was most serious by far — primary judge had in mind an offence of approximately mid-range — physical condition — s 16A(2)(m) — offender suffered cardiac episode requiring hospitalisation — no specific evidence placed before primary judge as to practical extent of any hardship based on physical condition or placement in prison — general deterrence — s 16A(2)(ja) — sentence imposed must make clear to other persons that these types of offences are abhorrent and those who engage will be met with punishment that reflects community’s attitude to child exploitation — guilty plea — s 16A(2)(g) — 25% given for utilitarian value of guilty plea by primary judge — leave to appeal granted — appeal dismissed
  • 21 August 2020 —

    Melville v The Queen [2020] NSWCCA 210 — drug importation offence — nature and circumstances — contrition — guilty plea — general deterrence — cooperation

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    appeal against sentence — importing marketable quantity of border controlled drug contrary to s 307.2(1) Commonwealth Criminal Code — original sentence imposed 5 years’ imprisonment with 3 year non-parole period — offence relates to 274.9g of pure cocaine — nature and circumstances — s 16A(2)(a) — offender was acting alone and planned importation over five day period — during that period offender booked return flight to Australia for purpose of importing border controlled drug — offender sourced cocaine in Peru weighed and packaged it into digestible amounts by wrapping in cling wrap and ingesting or inserting pellets into his body — planning was far more sophisticated than might be case with concealment in bag or suitcase — quantity involved was well above marketable quantity but significantly below commercial quantity — offence was committed purely for financial reward because offender owed debt to father and offence was easy way to pay off debt — offence was serious — contention that offender was purely a courier and had not prepared weighed or wrapped cocaine should be rejected — contrition — s 16(A)(2)(f) — offender had not given any evidence in relation to being remorseful but had expressed remorse to others — offender appeared to minimise seriousness of behaviour and demonstrated little insight into impact of offence on community — on balance offender was somewhat remorseful but aspects of remorse related to feelings of shame and regret given current predicament — guilty plea — s 16A(2)(g) — offender acknowledged guilt at earliest opportunity which could be seen as some evidence of remorse — sentencing judge did not expressly refer to utilitarian value of plea in remarks — it should be accepted that sentencing judge took utilitarian value of guilty plea into account by allowing 25% discount — general deterrence — s 16A(2)(ja) — fundamental in sentencing offender who imported border controlled drugs and personal deterrence also relevant and required sentence with real consequences — cooperation — s 16A(2)(h) — offender had co-operated with enforcement authorities but this was very limited nonetheless still attracted minor allowance — leave to appeal granted — appeal dismissed  
  • 14 August 2020 —

    Nakhl v The Queen [2020] NSWCCA 201 — dishonesty offences — nature and circumstances — objective seriousness — guilty plea — victim of offence — delay

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    appeal against sentence — 8 counts of engaging in dishonest conduct in relation to providing financial services contrary to s 1041G(1) Corporations Act — 4 further offences of the same kind taken into account pursuant to s 16BA — original sentence imposed 10 years’ imprisonment with 6 year non-parole period — nature and circumstances — s 16A(2)(a) — objective seriousness — offender worked as financial advisor and provided financial advice to 12 clients who gave offender approximately $6,473,707 to invest on their behalf — offender used money as they pleased including paying personal and business expenses — offender made false representations to clients about availability of capital protection or capital guarantee and true risk of recommended investments — total loss by all clients was approximately $5.1 million — offender’s conduct was deliberate premeditated planned and systematic — offender did not intend to lose money but used victims money as pleased for own purposes and benefit — four of the offences were more serious bases upon losses suffered by victims — each offence falls into high range of seriousness for these types of offences — what was important was type of scheme devised not how it was different to other schemes — as part of scheme offender deceived clients not only by giving false assurances but in using technology to create false impression that funds deposited were safe — guilty plea — s 16A(2)(g) — offender pleaded guilty but did not do so at first available opportunity in that plea came on fifth day after date set for trial — victim of the offence — s 16A(2)(d) — each victim was vulnerable and looked to offender for guidance and trusted offender with their savings — offender was told by victims that they sought safe investment — offender built trust and then betrayed it — many victims remain unpaid meaning they have lost means by which they were going to support themselves later in their lives — contrition — s 16A(2)(f) — offender was remorseful and contrite and truly sorry for losses incurred by victims — remorse was somewhat limited in that there was lot of self-pity — offender’s insight into offending was once deficient it was improving with passage of time — delay — delay should not be taken into account as discounting fact — complexity of investigation required to set out fully extend of offending — leave to appeal granted — appeal dismissed  
  • 14 August 2020 —

    DPP v Jabal [2020] VCC 1222 — tobacco importation offence — mental condition — antecedents — nature and circumstances — COVID-19 — guilty plea

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    sentence — importing tobacco products with intention of defrauding revenue contrary to s 233BABAD(1) Customs Act 1901 and s 11.2A Commonwealth Criminal Code — offence related to 3245 kg of molasses tobacco — mental condition — s 16A(2)(m) — offender has long history of psychological problems for which they were managed with antipsychotic and antidepressant medication — offender has history of heavy drinking and heavy consumption of cannabis but told psychologist they ceased all drug use two years ago — psychologist formed view that prospect of further term of imprisonment appears to have rekindled range of traumatic memories — psychologist anticipates this will render any time in custody more difficult than is typically case for individual who does not have history of trauma — while current symptoms not sufficient to meet diagnosis of PTSD they were nevertheless significant and merit diagnosis of PTSD in partial remission — offender carries with them the trauma experienced in jail in Kuwait and Iraq — trauma has undermined psychological wellbeing and quality of life ever since — prospect of enduring further imprisonment would be particularly burdensome — antecedents — s 16A(2)(m) — offender has some criminal history — in 2004 offender convicted and fined for possession and use of drug of dependence — in 2010 offender convicted and fined for four charges of obtaining financial advantage by deception — matters have some limited relevance but should not greatly impact on sentencing — nature and circumstances — s 16A(2)(a) — offender was principal in sophisticated criminal enterprise to evade $2.75 million in duties and taxes — there is no direct evidence as to what offender stood to gain beyond evasion of taxes but it can be readily inferred that offender calculated risk taken in committing offence was worth their while — COVID-19 — prospect of imprisonment would be all the more acute because of restrictions arising from COVID-19 pandemic particularly those as to quarantine lack of visits and programs and anxiety associated with potential exposure to infection — guilty plea — s 16A(2)(g) — plea does merit substantial reduction in sentence despite its late entry — this would not have been straightforward trial and saving to community by plea was likely considerable — offending of this kind will ordinarily result in custodial sentences and case is no exception — offender sentenced to 2 years’ and 9 months imprisonment with 15 month non-parole period — s 6AAA — but for plea of guilty offender would have been sentenced to 4 years’ imprisonment with 2 year and 6 month non-parole period    
  • 12 August 2020 —

    DPP v McMillian [2020] VCC 1227 — child exploitation offences — nature and circumstances — victim — mental condition — physical condition — guilty plea — cooperation — character — rehabilitation — specific deterrence — general deterrence

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    sentence — 2 counts of using carriage service to procure person believed to be under age of 16 years with intention of engaging in sexual activity — additional state drug offence — nature and circumstances — s 16A(2)(a) — offender communicated with two different people who they believed were underage girls knowing that this was against law — offender did what they could to procure each would be victim to engage in sexual activity — offender was obviously conscious of fact that they were engaging in illegal conduct from outset — conduct was deliberative and focused over period of six weeks — communicating with more than one victim in overlapping period is relevant to moral culpability which is high — offender did not lie about age nor go to great lengths to conceal identity — appears offender was banking on communications being kept secret — no actual victims is not a matter in mitigation — if there had been actual victims offending would be even more serious — mental condition — s 16A(2)(m) — time in gaol will be good deal harsher because of mental health issues and there is risk that mental health might well deteriorate — COVID-19 restrictions will mean offender undergoes harsher form of imprisonment — offender will not receive visits from family and partner — offender is of Aboriginal background so may well be especially at risk in terms of health — during time spent on remand offender has self-harmed and had suicidal thoughts — guilty plea — s 16A(2)(g) — offender pleaded guilty at earliest opportunity entitling them to significant discount in sentence otherwise received — cooperation — s 16A(2)(h) — offending conduct was deliberative and only came to end when offender was arrested — offender made some admissions to police and gave them access to phone — offender co-operated to an extent although did not admit to offending —rehabilitation — s 16A(2)(n) — offender has way to go in finally dealing with drug problem and appropriately addressing offending behaviour — offender has motivation and ability to turn things around — more needs to be done to address drug problem to deal with mental health problems and address underlying reasons for offending — prospects of rehabilitation guardedly good — specific deterrence — s 16A(2)(j) — some weight in view of deliberative nature of offending struggles with drugs psychological issues and current unclear picture of motivation for offending — general deterrence — s 16A(2)(ja) — strong weight in bid to deter others from behaving as offender has — offending preys on young and vulnerable and is difficult to detect — clear and strong message must be sent to other would-be offenders that conduct is intolerable — offender sentenced to 2 years’ and 6 months imprisonment with 6 month non-parole period — s 6AAA — but for plea of guilty offender would have been sentenced to 4 years’ imprisonment with 3 year non-parole period
  • 12 August 2020 —

    Taumoepeau v The Queen; Siaki v The Queen [2020] NSWCCA 200 — financial offences — guilty plea — rehabilitation

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    appeal against sentence — attempting to possess a commercial quantity of an unlawfully imported border controlled drug offence contrary to s 307.5(1) and s 11.1(1) of the Commonwealth Criminal Code — offences relate to 47.597kg of pure cocaine — original sentence imposed 12 years’ and 6 months imprisonment with a 7 year and 6 month non-parole period for both offenders — guilty plea — s 16A(2)(g) — Xiao error established —re-sentence — 25% discount including utilitarian value of guilty plea— rehabilitation — s 16A(2)(n) — Co-offender 1 had to drop out of rehabilitative program because they became preoccupied with health of their father, who was diagnosed with throat cancer — separated from wife and daughter went back to biological parents — strong support from family, completed a Salvation Army Positive Lifestyle Program and engaged in Bush Gang program involving forest work — Co-offender 2 undertaken number of programs and several educational programs, hospitality course and participated in Defence Community Dog Program training dogs to be used to assist veterans with PTSD — sentence — imposed 10 years’ and 6 months imprisonment with a 6 year and 6 month non-parole period
  • 10 August 2020 —

    LS v CDPP [2020] VSC 484 — child exploitation offences — nature and circumstances of the offence — antecedents — mental condition — contrition — guilty plea — general deterrence — specific deterrence — rehabilitation

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    appeal against sentence — 5 counts of producing child exploitation material offence contrary to s 474.20(1)(a)(ii) of the Commonwealth Criminal Code, 5 counts of transmitting child exploitation material using a carriage service offence contrary to s 474.19(1)(a)(ii) of the Commonwealth Criminal Code — 6 additional state offences — in respect of all charges, sentencing judge deferred sentence and released offender on strict bail conditions which were breached — nature and circumstances of the offence — s 16A(2)(a) — these offences upper range examples of offences in question, mainly because of gross breach of trust in offender involving or, more precisely, exploiting offender’s baby daughter — offender manipulated by an older offender — whilst committed offences to make money, appeal judge accepted offender wanted the money to provide for their daughter, not themselves — antecedents — s 16A(2)(m) — offender’s childhood marked by neglect and abuse and, it seems to appeal judge, a failure by Protective Services to appropriately intervene — mental condition — s 16A(2)(m) — offender suffers from complex PTSD and borderline personality disorder — deprivation offender experienced, and disorders spawned by it, explain in large measure offender’s resort to illicit drugs — contrition — s 16A(2)(f)(ii) — offender remorseful for offending against their daughter — offender lost custody of daughter, access with her is supervised and very limited — guilty plea — s 16A(2)(g) — offender pleaded guilty to all but two of the charges — general deterrence — s 16A(2)(ja) — Section 20C of the Crimes Act 1914 (Cth) ‘picks up’ provisions of the Children Youth and Families Act 2005 (Vic) which deal with the sentencing of children under the CYF Act and makes those provisions ‘surrogate federal law’ — in CNK v R, the Court of Appeal decided that s 362(1) of CYF Act excludes general deterrence when sentencing a child under the CYF Act for a state offence — s 20C makes specific provision for child federal offenders — in appeal judge’s view, s 16A, a general provision regarding federal offenders, must yield to the specific provision that is 20C — appeal judge rejected that they must take general deterrence into account in sentencing offender on the federal offences — specific deterrence — s 16A(2)(j) — rehabilitation — s 16A(2)(n) — appeal judge considered that a substantial sentence of detention is required to impress on offender the need to take responsibility for their offending, to deter offender from further offending and to promote their rehabilitation — sentence — imposed 12 months’ detention in a Youth Justice Centre
  • 5 August 2020 —

    Betka v R; Ghazoui v R; Hawchar v R [2020] NSWCCA 191 — money laundering offences — nature and circumstances — antecedents — contrition — guilty plea — character — rehabilitation

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    appeal against sentence — dealing with money to value of $100,000 or more intending that it would become instrument of crime contrary to s 404.4(1) of Commonwealth Criminal Code — original sentence imposed 3 years’ and 2 months imprisonment with 1 year and 11 month non-parole period on Ghazaoui — original sentence imposed 3 years’ and 4 months imprisonment with 1 year and 10 month non-parole period on Hawchar — original sentence imposed 6 years’ and 9 months imprisonment with 4 year non-parole period on Betka — nature and circumstances — s 16A(2)(a) — offenders structured cash deposited into various bank accounts in amounts less than $10,000 to avoid reporting requirements in Anti-Money Laundering and Counter Terrorism Financing Act — Gawchar was sentenced on basis that personally conducted 38 banking transactions totalling $289,602 over six days — Hawchar was sentenced on basis that personally conducted 19 banking transactions totalling $121,830 and also in possession of additional $116,500 — although Ghazoui conducted twice number of transactions and deposited twice amount of money by reason of contact with other syndicate members and association with leased premises Hawchar was more deeply involved in syndicate — role of both Ghazoui and Hawchar reflected mid-level offending — Betka sentenced on basis that personally conduct 558 banking transactions totalling $4,002,652 within 5 month period — funds formed part of $18,141,120 dealt with jointly with other members of syndicate — Betka’s offending in mid to high level based on finding that together with being directly responsible for deposits Betka was also responsible for distribution of funds to other members of syndicate — antecedents — s 16A(2)(m) — Hawchar had criminal record including sentence of imprisonment for extortion with threats of violence and dealing with property suspected of being proceeds of crime — Betka had criminal record including assault occasioning actual bodily harm — Betka due to be sentenced for terrorism related offence — contrition — offenders gave account in proceedings of contrition remorse and regret at having involved themselves in offending — allowed for finding of component of contrition — guilty plea — s16A(2)(g) — pleas were entered in what presents as strong prosecution case — sentencing judge reduced discount to be given in consideration of factors informing pleas — when sentencing court is persuaded that timing of plea reflects willingness to facilitate course of justice finding should find expressions in reasons for sentence — where Court does not make that finding or not otherwise satisfied that evidence allows for finding of subjective willingness to facilitate course of justice utilitarian value of plea should not be diminished — Court should move to resentence offenders allowing 25% discount for utilitarian value of pleas — Betka’s assistance to authorities attracting combined discount of 30% — character — s 16A(2)(m) — nothing in sentencing reasons indicates that Ghazaoui’s prior character was given any weight in sentencing exercise whether by finding that specific deterrence reduced or prospects of rehabilitation increased or that leniency should be afforded as first-time offender — Ghazaoui had benefit of finding of good character — rehabilitation — s 16A(2)(n) — Ghazoui’s prospects of rehabilitation are sound having regard to prior good character age and mental health at time of offending — unable to express same degree of confidence in assessing Hawchar’s prospects of rehabilitation given that offence was committed whilst on parole for another serious offence — since arrest Hawchar has shown commitment to family and community allowing for finding that prospects of rehabilitation are reasonable — same finding made for Betka’s prospects of rehabilitation and risk of reoffending — appeal allowed sentences quashed — offenders resentenced — Ghazoui sentenced to 2 years’ and 3 months imprisonment with 1 year and 1 month non-parole period — Hawchar sentenced to 2 years’ and 4 months imprisonment with 1 year and 1 month non-parole period — Betka sentenced to 6 years’ imprisonment with 3 year and 6 month non-parole period    
  • 3 August 2020 —

    Walsh v The Queen (Cth) [2020] NSWCCA 182 — drug importation offence — guilty plea — nature and circumstances — rehabilitation — general deterrence

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    appeal against sentence — conspiring to import marketable quantity of border controlled drug contrary to ss 307.2(1) and 11.5(1) of Commonwealth Criminal Code — original sentence imposed 9 years’ imprisonment with 5 year non-parole period — offence relates to 1154.3g of pure cocaine — guilty plea — s 16A(2)(g) — offender sentenced 15 months prior to Xiao v R being handed down — offender not afford full worth of guilty plea entered in recognition of utilitarian value — nature and circumstances — s 16A(2)(a) — offence extended over 18 month period and involved numerous overt acts in furtherance of conspiracy — role in conspiracy was significant and of greater importance than co-conspirators — offender introduced co-conspirators and gave instructions — offender directed individual co-conspirators to collect particular consignments — offender liaised with international supplier negotiating price and managing logistics and reinvesting profits — more than $500,000 dollars was transferred overseas — profit was considerable with offender receiving cash and cocaine for their part in scheme — amount received exceeded debt that was owed by offender to those for whom they acted — well organised criminal activity involving number of individuals with object of achieving serious crime — character — s 16A(2)(m) — offender claimed that they were forced to become involved as means of reducing financial debt feeling that family would be hurt if they did not participate — offender also profited personally from involvement — rehabilitation — s 16A(2)(n) — offender has excellent prospects of rehabilitation — offender has high degree of insight into perils of drug use and strong determination to remain abstinent to make positive contribution to society — offender has undertaken courses whilst in custody designed to overcome dependency on drugs — general deterrence — s 16A(2)(ja) — need for sentence to deter others by showing would be offenders what lies in store for drug offenders of this ilk must be given chief weight — leave to appeal granted — sentence quashed — offender re-sentenced to 9 years’ imprisonment with 4 year and 9 month non-parole period        
  • 31 July 2020 —

    Estevez v The Queen [2020] NSWCCA 184 — drug importation offence — nature and circumstances — contrition — mental condition — guilty plea — cooperation — rehabilitation

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    appeal against sentence — importing commercial quantity of border controlled drug contrary to s 307.1(1) Commonwealth Criminal Code — original sentence imposed 9 years’ imprisonment with 6 year non-parole period — offence related to 2.3593kg of cocaine — nature and circumstances — s 16A(2)(a) — at time of offending offender was drug user and had accumulated debt to drug dealer and agreed to import cocaine to clear drug debt — offender was planning importation for at least three weeks and communications gave impression that offender was willing participant not just last-minute recruit as mere courier — offender made conscious decision to engage in conduct and was sufficiently well trusted to be in possession of valuable commodity — offender was found to be courier but not mere courier with no prior knowledge or specific knowledge — offence was slightly below midrange in terms of objective seriousness and in bottom half of range as quantity was not particularly high — contrition — s 16A(2)(f)— offender feels genuine remorse and contrition and has shown some insight into seriousness of offending particularly feelings of regret for impact offending has had on grandparents who can no longer be financially supported — mental condition — s 16A(2)(m) — offender showed some symptoms of PTSD — there was some connection between offending and PTSD — connection was not of type which had any impact on appropriate length of sentence that ought to be imposed — guilty plea — s 16A(2)(g) — sentence was imposed before decision in Xiao v R — offender pleaded guilty at the earliest opportunity — discount of 25% should be allowed for early plea of guilty — cooperation — s 16A(2)(h) — value of assistance provided to authorities is to be characterised as low and does not include future assistance — total combined discount for plea of guilty and assistance should be 33.33% — rehabilitation — s 16A(2)(n) — offender is likely to have stopped using drugs while in custody — offender has used time in custody to work and to participate in courses available and insight into offending has increased — prospects of rehabilitation are likely to have improved — leave to appeal granted — appeal allowed — sentence quashed — offender sentenced to 7 years’ imprisonment with 4 year and 8 month non-parole period  
  • 31 July 2020 —

    R v McKeay [2020] NSWDC 408 — child exploitation offence — nature and circumstances — guilty plea — general deterrence — specific deterrence — rehabilitation — character

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    sentence — using carriage service to procure persons under 16 years for sexual activity contrary to s 474.26(1) Commonwealth Criminal Code — additional state offence — nature and circumstances — s 16A(2)(a) — offender communicated with victim over two week period — offender knew victim was 14 years old — offender initiated offending by posting advertisement offering monetary reward for sexual activity — messages were sexually explicit — there was no attempt by offender to disguise intention — while presence of actual victim may aggravate offending absence of victim will not mitigate it — objective seriousness of offending at low end of range — guilty plea — s 16A(2)(g) — offender pleaded guilty to both federal and state counts on indictment — offender pleaded guilty at earliest opportunity and is entitled to discount for utilitarian value of plea — discount of 25% assigned — general deterrence — s 16A(2)(ja) — general deterrence and denunciation of paramount importance in sentencing for these types of offences and must reflect public interest in protecting children from sexual exploitation — courts must also bear in mind that offending involving grooming and procuring of children has become increasingly relevant with advent of internet — sentence to be imposed must make clear to other like-minded persons that these types of offences are abhorrent and will be met with punishment of severity reflecting community’s attitude to exploitation of children — specific deterrence — s 16A(2)(j) — offender is at low risk of reoffending according to report — there is objective evidence of self-harming and offender’s mother corroborated some of offender’s history — it is likely that offender has significant undiagnosed and untreated mental health issues — personal deterrence has some albeit limited role to play — rehabilitation — s 16A(2)(n) — motivation to commit offences arises from some degree of sexual deviance so successful rehabilitation depends on extent to which offender recognises disorder and has taken steps to overcome it — person who has sought and is undergoing treatment and evinces intention to continue with treatment is usually viewed by courts as having greater prospects of rehabilitation — offender has reasonable prospects of rehabilitation particularly if they engage in treatment plan — character — s 16A(2)(m) — offender entitled to some leniency on account of prior good behaviour and lack of prior criminal history but less weight is to be accorded in offending of this kind — offender sentenced to 2 years’ and 3 months imprisonment with 1 year and 3 month non-parole period    
  • 28 July 2020 —

    DPP v Mathuran [2020] VCC 1121 — drug importation offences — character — guilty plea — delay — rehabilitation — contrition — COVID-19 — nature and circumstances of the offence — specific deterrence — general deterrence

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    sentence — import a marketable quantity of a border-controlled drug — additional state offences and uplifted summary charge — offences relate to between 451 and 530g of pure MDMA, between 6 and 7g of pure ketamine and between 4.7 and 6.3g of pure cocaine, as well as 17.7g of pure cocaine, 22.8g of pure MDMA, 5.5g of pure ketamine, 952mg of LSD in combination with another substance and 29.6g of cannabis — character — s 16A(2)(m) — references from long-term friends speak of offender as kind considerable and hardworking individual and loving family man — note offender’s self-improvement since charged with offending and observed offender’s remorse and steps taken to address offending including drug counselling and asking for support — no prior convictions, matters pending or outstanding — offender otherwise of good character and take this into consideration in mitigation of offender’s sentence — guilty plea — s 16A(2)(g) — delay — offender always intended on pleading guilty but delay in analysis prevented matters progressing and offender had matter hanging over their head for that period of delay — 9 months delay before able to plead guilty is not an insignificant period — take into account plea of guilty at earliest opportunity with utilitarian value as well as being reflective of offender’s remorse — consider period and effects of delay to be significant — utilitarian value of guilty plea comes into sharper focus now in midst of COVID-19 pandemic — offender indicated and maintained plea in midst of these difficult times — rehabilitation — offender demonstrated substantial rehabilitation during period particularly in relation to illicit substance abuse — had matter hanging over offender’s head and certainty of gaol hanging over offender’s head for lengthy period of time — offender no doubt older and wise than when committed offences and facing court during a pandemic — regard prospects of rehabilitation as very good — contrition — s 16(2)(f) — friends’ references noted offender expressed remorse for their offending as well as psychologist report which stated that offender expressed degree of remorse for their actions — COVID-19 — offender’s first time in prison in extraordinary circumstances being experienced in the community at present due to the COVID-19 pandemic — whilst no evidence of outbreak in prison at present, and sentencing judge did not assume there inevitably will be a serious outbreak, sentencing judge accepted conditions in custody at present considerably more onerous than previous, if for no other reason that due to ceasing of visits — limited courses and rehabilitation programs available and recreation also necessarily limited — expected that situation will continue for some indeterminate time — general anxiety in community of untethered outbreak understandably harder to bear if experienced by prisoner in a regulated and managed environment such as a prison, where one has restricted control over who one is exposed to and how — accept level concern offender has and anxiety for others, their parents, during this time is more difficult to bear whilst incarcerated— nature and circumstances of the offence — s 16A(2)(a) — postal method does say something about offender — relevant to sentencing judge’s assessment of offender’s drift into serious criminality and prospects of rehabilitation — offender person of otherwise good character who descended into a party lifestyle — over time drift into serious criminality occurred due to availability of means of importing which eased manner in which someone of offender’s background and predisposition can engage with organised crime — offender did not receive any packages — to a substantial degree offender persisted with further importations once they concluded prior packages failed for some reason — specific deterrence — s 16A(2)(j) — largely for person of offender’s background to be first time experience of custody of some length, specific deterrence is not a major consideration — general deterrence — s 16A(2)(ja) — general deterrence is a major consideration — sentence — imposed 3 years’ imprisonment to be released after 15 months on recognisance to be of good behaviour for the remaining 21 months — s 6AAA — but for pleas of guilty, sentencing judge would have imposed 4 years’ and 6 months imprisonment with a 2 year and 9 month non-parole period
  • 28 July 2020 —

    DPP v Chapman [2020] VCC 1136 — child exploitation offence — character — age — guilty plea — rehabilitation — specific deterrence — general deterrence

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    sentence — 2 counts of using a carriage service to solicit child exploitation material offence — additional state offences — offender committed offender whilst placed on Community Correction Order for 18 months due to previous offence of using a carriage service to transmit indecent communications to a child under 16 years — aggravated feature of offending for Count 1 — character — s 16A(2)(m) — other relevant subsequent convictions — victim from Charge 1, with whom offender had a relationship, obtained a family violence intervention order which offender breached giving rise to a charge of Persistent Contravention of a Family Violence Order, where offender sentenced to 90 days’ imprisonment — granted freedom after serving 72 days because of allowance for periods of emergency lockdown — age — s 16A(2)(m) — guilty plea — s 16A(2)(g) — offender 25 years old and accordingly a youthful offender — aged between 18 and 23 during time of offending — entered pleas of guilty at earliest possible opportunity and entitled to benefits that flow from offender’s pleas, being their utilitarian benefit and that they are some evidence of your remorse — rehabilitation — s 16A(2)(n) — circumstances surrounding offending are concerning particularly because of prior convictions and that offending committed whilst offender serving Community Correction Orders, which is aggravating feature of offending — subsequent offending would tend to show this offending falls into pattern of behaviour that may be entrenched — sentencing judge regarded prospects of rehabilitation as guarded — specific deterrence — s 16A(2)(j) — general deterrence — s 16A(2)(ja) — conduct of that kind committed by offender must be deterred — offender must be specifically deterred by further offending — offender assessed as moderate risk of sexual reoffending and accordingly protection of community from offender must play a role in exercise of sentencing discretion — offender’s conduct must be publicly denounced and offender must be justly punished — although offender is a youthful offender and sentencing judge must look to offender’s rehabilitation — sentence — imposed 2 years’ and 7 months imprisonment — after serving 18 months imprisonment released on recognisance order for 13 months — s 6AAA — but for guilty plea, would have imposed 4 years’ imprisonment with a 2 year and 6 month non-parole period
  • 24 July 2020 —

    DPP (Cth) v D’Angelo [2020] VCC 1097 — child exploitation offences — guilty plea — nature and circumstances of the offence — general deterrence — specific deterrence — contrition — character — rehabilitation — mental condition — hardship to the offender — COVID-19

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    sentence — using a carriage service to procure a person under age of 16 years to engage in sexual activity offence contrary to s 474.26(1) of the Commonwealth Criminal Code, using a carriage service to transmit indecent communication to person under age of 16 years offence contrary to s 474.27A of Commonwealth Criminal Code — additional state summary offences uplifted to County Court from Magistrates’ Court — guilty plea — s 16A(2)(g) — early pleas of guilty which have significant utilitarian value, particularly as criminal trials have been suspended from March 2020 due to the COVID-19 pandemic — pleas show willingness to facilitate the course of justice and have saved the time and expense of a trial — nature and circumstances of the offence — s 16A(2)(a) — Court accepts offending occurred in context of low period of offender’s life following break-up of relationship and in context of offender having struggled on and off with anxiety and depression over some 20 years — offender not medicated for anxiety and depression during period of offending but relied upon increased usage of alcohol — this can never excuse such offending — offender should be in no doubt about the seriousness of offending — offences are prevalent and difficult to detect — notwithstanding undercover police officer recipient charge 1, offence is no less serious than if the person had in fact been a child  — offending only ceased because victim ceased responding to offender and because offender was arrested respectively — though deeply concerning, offending not as extensive in gravity as one often sees in these types of cases — no aggravating features of bullying or intimidating conduct or threats to blackmail a child with indecent photographs of themselves — used own name and number, demonstrating not experienced, sophisticated predator upon children — general deterrence — s 16A(2)(ja) — emphasis must be placed upon general deterrence so that others who are minded to act in a way that debases children by crudely treating them as sexual play things before they have the maturity to deal with such conduct will know that they will be appropriately punished — specific deterrence — s 16A(2)(j) — specific deterrence as offending overall took place over 2.5 months — concerning lack of response from the person with whom you were communicating on charge 1 coincides with you beginning to communicate with your victim on charge 2 — contrition — s 16A(2)(f)(ii) — offender somewhat minimised offending stating they “got sucked in by the undercover operative” and nowhere has offender acknowledged potential adverse impact of offending upon victims — although offender accepted responsibility for offending by pleading guilty and sentencing judge accepted offender truly ashamed and has some remorse, offender should undertake a Sex Offenders Program to increase insight — to offender’s credit they expressed willingness to undertake such offence specific treatment — character — s 16A(2)(m) — no prior criminal history — nature of this serious offending is such that less weight given to prior good character than might otherwise be the case — rehabilitation — s 16A(2)(n) — mental condition — s 16A(2)(m) — lack of prior offending relevant to prospects of rehabilitation — excellent vocational history and close supportive family — since offender voluntarily engaged in counselling and compliant with mood stabilising medication — together with reduction of alcohol intake, resulted in Persistent Depressive Disorder with anxious distress moving into early remission — in sentencing judge’s view, that is significant rehabilitative step which gives Court some comfort offender likely to have good prospects of rehabilitation — hardship to the offender — given offender 41 years old with no prior or subsequent involvement in criminal activity never served immediate custodial sentence, sentencing judge considered offender will find serving term of imprisonment challenging — likely to have far more punitive effect upon offender who has suffered long term psychological fragility in terms of anxiety and depression — sentencing judge held very real fears offender is type of person who may well be crushed by a prison environment if incarcerated for significant time, not only may their mental health deteriorate but rehabilitative gains offender have made may be lost — COVID-19 — offender taken into custody for the first time during more onerous conditions of imprisonment during the COVID-19 pandemic — offender endured 14 days of isolation, and prisoners were locked in their cells for 23 hours each day following detection of an active case of COVID-19 in order to try to contain the spread of the virus — offender’s prison is one of two prisons which remains in lockdown indefinitely — onerous way to serve imprisonment — availability of rehabilitative programs in custody very significantly reduced and face-to-face programs are almost non-existent — from 8 July Victoria under lockdown and at time of imposing sentence there is no end in sight for more onerous conditions of imprisonment associated with the pandemic — aware that a medication offender was taking to manage psychological state is not prescribed in prison and likely offender will need period of readjustment — sentence — imposed 23 months’ imprisonment to be released after serving period of 4 months upon recognisance release order — s 6AAA — but for guilty plea, would have imposed 4 years’ imprisonment with a 3 year non-parole period
  • 16 July 2020 —

    R v Whale [2020] NSWDC 383 — child exploitation offence — character — contrition — rehabilitation — offender’s family and dependants — entrapment — nature and circumstances of the offence — general deterrence — specific deterrence

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    sentence — used a carriage service to transmit communications to someone they believed was under the age of 16 years, with intention of procuring the recipient to engage in sexual activity with themselves offence contrary to s 474.26(1) of the Commonwealth Criminal Codecharacter — s 16A(2)(m) — whilst sentencing judge took into account that offender has no prior convictions, it is trite that previous good character is to be given less weight in relation to offences of the present type due to the strong need for general deterrence and to protect children — contrition — s 16A(2)(f)(ii) — clinical psychologist speaks of offender presenting as deeply ashamed of their behaviour — clear from family testimonials that offender very much regrets effect offending had on their family, particularly their children — such feelings of shame and regret must not be confused with contrition and are more akin to self-pity — offender’s shame and regret is relevant to their prospects of rehabilitation — rehabilitation — s 16A(2)(n) — in circumstances where offender continues to maintain their innocence, it is always difficult to come to a positive conclusion as to their prospects of rehabilitation — despite offender’s maintenance of their innocence, sentencing judge of the view that offender unlikely to reoffend and prospects of rehabilitation are good — offender still has some family support from their wife and children as borne out by their testimonials and fact that wife and son attended courthouse for sentence hearing — offender’s family and dependants — s 16A(2)(p) — while not exceptional, the probable effect of sentence upon offender’s family could be taken into account as part of the “general mix” of subjective features — entrapment — absence of actual victim in present matter does not mitigate offender’s culpability — nature and circumstances of the offence — s 16A(2)(a) — the following factors increase offence’s objective seriousness: age differential between offender and recipient of approximately 50 years, offender relatively persistent in pursuing recipient, offender initiated idea to meet and persisted in meeting’s planning, offending occurred over 3 weeks and demonstrated relatively strategic course of criminal conduct, many messages were sexually explicit and outlined offender’s deliberate and clear desire to engage in sexual acts and intercourse with recipient, offender understood offending was wrong, fact offender drove at agreed time to planned meeting place intending to have sexual intercourse with recipient — offender’s conduct quite serious but number of aggravating features were not present in offending — objective seriousness of offending just below mid-range — general deterrence — s 16A(2)(ja) — specific deterrence — s 16A(2)(j) — general deterrence of utmost importance in relation to these sorts of offences — especially bearing in mind offender still maintains innocence, specific deterrence remains an important factor — sentence — imposed 2 years’ and 6 months imprisonment with recognizance release order after 9 months served
  • 15 July 2020 —

    R v Burch [2020] ACTSC 192 — child exploitation offences — guilty plea — nature and circumstances of the offence — general deterrence — specific deterrence — COVID-19

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    sentence — possessed child abuse material, being data held in a computer or contained in a data storage device, which had been obtained or accessed using a carriage service offence contrary to s 474.22A of the Commonwealth Criminal Code, used a carriage service to transmit child exploitation material offence contrary to s 474.19(1) of the Commonwealth Criminal Code (now repealed) — guilty plea — s 16A(2)(g) — sentencing judge allow discount if plea demonstrated remorse, acceptance of responsibility and/or a willingness to facilitate the course of justice — Crown submitted timeliness of the plea and strength of the Crown case were relevant to an assessment of the subjective value of the pleas — 25% discount for each pleas of guilty — nature and circumstances of the offence — s 16A(2)(a) — in relation to Count 1, offending not isolated and material fell into CEM Categories 1, 3 and 4 — gravity of sexual activity portrayed in material ranged in seriousness and some were very serious — images depicted “prepubescent” girls and a “young boy”, at most 6 children were involved — no evidence of possession for sale or distribution, no evidence risk of others accessing material — any offence involving children of this nature is to be considered serious — in relation to Count 2, communications with 4 people and several communications with 2 of those persons over period of approximately 10 weeks, although not consistently — insufficient evidence that any receiver of material was under 18 years old, content of transmissions highly offensive, offender aware conduct was criminal — no evidence of transmission for sale or distribution, offence unsophisticated without a secure IP address and password protected access to material — not a victimless crime as cause indirect harm by inciting fascination with deviant behaviour which possesses an indirect risk of harm (potentially very serious harm) to children and encourage unhealthy and disrespectful attitude to children — general deterrence — s 16A(2)(ja) — specific deterrence — s 16A(2)(j) — well established general deterrence is paramount sentencing purpose related to offences of this kind and purpose of personal deterrence also looms large — in this case, general deterrence is important sentencing purpose — also important sentence operates to provide some level of personal deterrence and support any possible rehabilitation by offender — having regard to objective seriousness of offence, not abundantly clear that only appropriate way in which a sentence could be served is by way of full-time imprisonment and while general deterrence remains primary sentencing purpose, that purpose may be able to be adequately met while other purposes (including rehabilitation) are met by ordering service of sentence by intensive correction order — COVID-19 — offender assessed as suitable for intensive correction order — sentencing judge noted that ordinarily they would not consider an intensive correction order would be an adequate punishment for this offence, given significant objective seriousness of offence and fact offender continues to lack insight into their conduct and continues to attempt to rationalise it — however in circumstances that any imprisonment would be attended by additional constraints because of current COVID-19 pandemic, proceed to impose intensive correction order — in custody, offender would be significantly more restricted than would ordinarily be the case, particularly in relation to visits, and they would run a higher risk of contracting the disease — risk very largely addressed by strict visiting or lack of visiting conditions that operate within prison at the moment and will presumably continue to operate for indefinite future — sentence — imposed 12 months’ imprisonment that “despite having significant reservations about doing so” is to be served by way of intensive correction in the community, good behaviour order for a period of 2 years with community service condition and engage in assessment for a sex offender program and undertake program if suitable to do so
  • 9 July 2020 —

    Nweke v The Queen [2020] NSWCCA 153 — drug importation offence — non-parole period — nature and circumstances of the offence — contrition — co-operation — character — specific deterrence — rehabilitation

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    appeal against sentence — conspiracy with persons unknown to import a commercial quantity of a border controlled drug offence contrary to s 11.5(1) and s 307.1(1) of the Commonwealth Criminal Code — offence relates to 2.514 kilos of pure cocaine — original sentence imposed 13 years’ and 9 months imprisonment with a 10 year and 6 month non-parole period — non-parole period — s 19AQ(1) — sentence partially accumulated on balance of earlier sentence imposed for previous drug importation offence — offender sentenced in 2007 for aiding and abetting importation of trafficable quantity of border controlled drug — sentence imposed 10 years’ imprisonment with a 6 year and 6 month non-parole period — present offence committed whilst offender on parole for earlier offence — by force of s 19AQ(1) parole order in respect of that sentence was taken to have been revoked upon imposition of sentence for the present matter — unserved part of earlier sentence was 3 years’ and 6 months — sentencing judge construed s 19AQ(5) to mean that offender was liable to serve whole of that term — if offender’s submission, that s 19AQ(5) has no operation where sentencing for further offence occurs after expiry of earlier parole period because that subsection does not refer to s 19AQ(2), is correct, the result would be inconsistent with that s 19APB provides — s 19APB expressly picks up circumstances in the present case where offender is not sentenced until after earlier parole period has expired — result is that s 19APB(1) applies, and offender is taken to be still under sentence and not to have served that part of the sentence that remained to be served at the beginning of the parole period — s 19AQ(5) is subject to the operation of s 19AA(2) — s 19AA qualifies the prima facie harshness of s 19AQ(5) by enabling offender to receive a credit in respect of period spent on parole up to date of commission of further offence — sentencing judge did not consider that s 19AQ(5) was subject to s 19AA(2) and in that way failed to give credit for “clean street time” — proper approach is that offenders against criminal law of Commonwealth are entitled to credit for “clean street time” whilst on parole — offender’s “clean street time” was 2 years’, 5 months and 27 days — period offender was required to serve by reason of the breach of that parole was 12 months and 2 days, not the whole of the parole period earlier imposed of 3 years’ and 6 months — re-sentence — belief of learned sentencing judge that offender “owed” 3 years’ and 6 months of balance of parole, when in fact there were only 12 months remaining to be served, necessarily calls for substantive re-consideration of head sentence imposed for this conspiracy — not only because new head sentence was partly cumulative on balance of parole, but also because sentencing judge, in accordance with Commonwealth sentencing regime, imposed a new, single non-parole period that encompassed both bases of incarceration — nature and circumstances of the offence — s 16A(2)(a) — role of offender was undoubtedly significant — failed conspiracy was founded upon heartless manipulation of an innocent agent — contrition — s 16A(2)(f)(ii) — expressions of remorse placed before sentencing judge — in light of plea of not guilty and failure of offender to enter witness box in proceedings on sentence, sentencing judge did not give those expressions great weight — efficiency — in light of highly efficient way in which trial focused on single issue, discount of 5% applied — character — s 16A(2)(m) — important evidence on sentence of criminal record of offender along with intertwined history of incarceration in prisons and detention in immigration detention centres — except for period of some months in 2012 and early 2013, offender has not been at liberty for period of more than 15 years — specific deterrence — s 16A(2)(j) — rehabilitation — s 16A(2)(n) — weighing against the quantity of cocaine not far beyond the statutory “cut-off point” relating to commercial quantity of substance was brazenness of committing offence of this gravity inside detention centre, fact offender was not only on parole but also for same kind of offence, patently high moral culpability of offender, obviously important role to be played by specific deterrence and necessarily guarded finding about prospect of rehabilitation — sentence — imposed 13 years’ and 3 months imprisonment with a 8 year and 6 month non-parole period
  • 8 July 2020 —

    Kabir v The Queen [2020] NSWCCA 139 — tax offences — victim impact statements — offender’s family and dependants — character — contrition

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    appeal against sentence — dealing with proceeds of crime in respect of money or property the value of which was $50,000 or more offence contrary to s 400.5(1) of the Commonwealth Criminal Code, obtaining financial advantage by deception from a Commonwealth entity offence contrary to s 134.2(1) of the Commonwealth Criminal Code — additional dishonestly causing a risk of loss to a Commonwealth entity offence contrary to s 135.1(5) of the Commonwealth Criminal Code taken into account pursuant to s 16BA — offences relate to $51,692.97, $22,475.18 and $16,814.73 respectively — original sentence imposed 5 years’ imprisonment with a 3 year non-parole period — victim impact statements — s 16A(2)(ea) — open to sentencing judge to have been satisfied giver of impact statement was properly to be regarded as a victim for the purposes of s 16AAA of the Crimes Act — as such, s 16A(2) required sentencing judge to take their victim impact statement into account — by victim’s own account, they have suffered harm and relates that harm to the offence committed by offender for commission of which it is apparent victim was recruited and manipulated — sentencing judge’s implicit conclusion that giver of statement was a victim or that their statement was a victim impact statement are entirely uncontroversial — offender’s family and dependants — s 16A(2)(p) — sentencing judge’s remarks make it clear they did take account of hardship to offender’s family — offender did not contend that sentencing judge failed to give it sufficient weight or emphasis — unsurprising having regard to the fact that, absent a demonstrable House v The King error, sentencing judge’s discretionary consideration of matters arguably amounting to hardship is unassailable — character — s 16A(2)(m) — apparent from any fair reading of sentencing judge’s remarks that they were singularly unimpressed with character evidence upon which offender relied — clearly of the view that statements of praise from relatives and colleagues and accompanying expressions of disbelief that offending even occurred at all were effectively in tension with fact and extent of offending — that is so particularly having regard to considerable degree of detailed planning involved carried out at several layers of detail over a relatively extended period — loss of opportunity to make better submission not to be confused with loss of opportunity to make any submission — offender not denied procedural fairness, sentencing judge entitled to proceed as they did — contrition — s 16A(2)(f)(ii) — sentencing judge unambiguously indicated that they were not prepared to act upon second-hand expressions of remorse, particularly in circumstances where offender did not themselves choose to give evidence about it — offender cannot demonstrate sentencing judge’s finding that offender was not remorseful was erroneous — appeal dismissed
  • 2 July 2020 —

    R v Wu [2020] NSWDC 342 — tobacco importation offences — nature and circumstances of the offence — course of conduct — victim of the offence — contrition — guilty plea — specific deterrence — general deterrence —character — rehabilitation — offender’s family and dependents

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    sentence — possess goods knowing goods were imported with intent to defraud the revenue offence contrary to s 233BABAD(2) of Customs Act 1901 (Cth) — offence relates to possession of 368,480 sticks of tobacco and 1.18 kilograms of loose tobacco — nature and circumstances of the offence — s 16A(2)(a) — sophisticated offending involving detailed planning — sentencing judge not satisfied  offender arranged for storage unit — offending took place over period of time — total amount of revenue evaded on cigarettes was $301,324.52 and revenue evaded on loose tobacco was $1,286.59 — use of false names and contact details makes offending difficult to detect and details of whole operation involving importation and distribution of illegal products is unknown — offender had some involvement in establishment of storage unit — offender involved in distribution and sale of tobacco products, had knowledge of local market for cigarettes, aware of requirement to pay duties and that cigarettes possessed did not conform to Australian standards — offender was intermediary or distributor — course of conduct — s 16A(2)(c) — offending took place over period of time and represented series of criminal acts rather than isolated offence — victim of the offence — s 16A(2)(d) — offences are difficult to detect and not only defraud revenue but involve considerable investigative resources and therefore revenue to detect — all Australian taxpayers become victims of this type of offending — contrition — s 16A(2)(f) — offender shown contrition for offending however no reparation has been made for loss to revenue — guilty plea — s 16A(2)(g) — offender’s early plea of guilty taken into account both as expression of remorse and giving effect to utilitarian discount by way of facilitating course of justice — 25% discount given for utilitarian value of plea together with contrition and remorse — specific deterrence — s 16A(2)(j) — specific deterrence must be taken into account as offender must understand serious nature of offending and its denunciation by the community — general deterrence — s 16A(2)(ja) — general deterrence important in sentencing process for offences under s 233BABAD of Customs Act — such offending is difficult to detect and creates significant enforcement and investigations costs for Commonwealth and taxpayers — character — s 16A(2)(m) — offender otherwise of good character — decision to invest in tobacconist business led to offending — offender’s good character may be given weight in mitigation however fact that not isolated offence and took place over period of time means that it does not entitle them to leniency — rehabilitation — s 16A(2)(n) — offender has learnt salutary lesson following arrest — motivation was to provide for family and now offender has reasonable prospects of rehabilitation — offender’s family and dependants — s 16A(2)(p) — offender is major financial contributor to family however does not amount to hardship by comparison to other offenders — unavoidable consequence of criminal behaviour — sentence — imposed 2 years imprisonment to be served by way of ICO
  • 19 June 2020 —

    Burton v The Queen [2020] NSWCCA 127 — child exploitation offences — nature and circumstances of the offence — manifest excess

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    appeal against sentence — use carriage service to transmit child pornography material offence contrary to s 474.19(1) of the Commonwealth Criminal Code — additional State offence — additional use carriage service to transmit indecent material to persons under the age of 16 years offence contrary to s 474.27A(1) of the Commonwealth Criminal Code taken into account pursuant to s 16BA — original sentence imposed 21 months imprisonment with a 12 month non-parole period — nature and circumstances of the offence — s 16A(2)(a) — sentencing judge well aware no child victims of offence of Count 1 but nevertheless concluded it was a mid-range offence — in doing so appears sentencing judge clearly considered other matters informing that question were sufficient to support their conclusion — sentencing judge patently concerned with highly inappropriate and sexualised content of written material produced by offender — must be remembered that offence is committed by transmission of material that qualifies as child exploitation material — seriousness of offence of transmission is necessarily informed by nature and content of material itself — that is something sentencing judge clearly directed their attention — offender used explicit language to describe sexual acts between themselves and children — sentencing judge must be taken, in accordance with authority, to have understood importance of attaching possibility of dissemination of this written material to vulnerable recipients or those susceptible to acts in the ways the offender described — not satisfied sentencing judge’s assessment of objective seriousness of Count 1 has been shown to be erroneous — manifest excess — do not accept sentencing judge’s sentences were manifestly excessive — characterisation of Count 1 as offence falling within mid-range of objective seriousness is in tension with sentence actually imposed for that count but in a way actually favoured offender — sentencing judge obviously took account of offender’s strong subjective case and of opinions from medical specialists dealing with their psychiatric condition and their commendable attempts to overcome it — sentences imposed by sentencing judge were not erroneously severe — appeal dismissed
  • 19 June 2020 —

    DPP (Cth) v Stanley (a pseudonym) [2020] VCC 898 — child exploitation offences — nature and circumstances — mental condition — victim — guilty plea — contrition — rehabilitation — hardship — totality — general deterrence

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    sentence — 4 rolled up charges of transmitting indecent communication to a person who was or offender believed to be under age of 16 using a carriage service offence contrary to s 474.27A of the Commonwealth Criminal Code — 5 charges of using carriage service to groom person who was or offender believed to be under 16 years of age for sexual activity offence contrary to s 474.27 of the Commonwealth Criminal Code — 1 charge of causing child exploitation material to be transmitted to offender using carriage service offence contrary to s 474.19(1)(a)(ii) of the Commonwealth Criminal Code — 2 charges of using carriage service to menace offence contrary to s 474.17(1) of the Commonwealth Criminal Code — 1 charge of procuring person under 16 years for sexual activity using a carriage service contrary to s 474.26 of the Commonwealth Criminal Code — 1 charge of using carriage service to engage in sexual activity with person under 16 years of age contrary to s 474.25A(1) of the Commonwealth Criminal Code — additional state offences — nature and circumstances — s 16A(2)(a) — offending objectively very serious — conduct predatory, premeditated, potentially corrupting and sexually and emotionally exploitative — charges after Charge 3 were committed while offender was on Community Corrections Order for unrelated offending — lack of identified real victim does not lessen gravity of offence — mental condition — s 16A(2)(m) — offender assessed as having mild intellectual disability — sentencing judge accepted that intellectual disability reduces moral culpability for sexual exploitation offences to some extent — offender’s conviction in 2013 for transmitting indecent communication to a 10 year old girl in like circumstances not only proves awareness of wrongdoing it increases moral culpability for current offences — intellectual disability has more effect on moral culpability for charges of using carriage service to menace — victim — s 16A(2)(d) — conduct was such that sentencing judge presumed that conduct has harmed or will harm them in some way — victim of single charge of causing transmission of child pornography was vulnerable not only because of age but because of intellectual disability — guilty plea — s 16(A)(2)(g)  — offender pleaded guilty to all offences — fact that case was strong does not detract from utilitarian value of early plea of guilty — contrition — s 16A(2)(f) — sentencing judge not satisfied offender truly remorseful — offender repeating behaviour they knew to be wrong mitigates against finding of remorse — offender repeated behaviour for which they were sentenced in 2013 eleven times — denying or minimising conduct tends to undermine claim of remorse — when interviewed offender denied engaging in sexual conversations — rehabilitation — s 16A(2)(n) — offender not been deterred by experience of being detected and punished — prospects of rehabilitation are guarded at best — hardship to offender — no evidence intellectual disability will increase burden of imprisonment — imprisonment during COVID-19 pandemic generally harder than at other times — general deterrence — s16A(2)(ja) — offences are internationally prevalent and hard to detect given anonymity afforded by internet— community protection is best achieved by rehabilitation — sentence — sentence imposed 3 years’ and 9 months imprisonment with 2 year non-parole period — s 6AAA — if offender had not pleaded guilty total effective sentence would have been 5 years with 3 year non-parole period
  • 9 June 2020 —

    R v Faber [2020] SASCFC 49 — drug importation — manifest inadequacy — nature and circumstances of the offence — character — rehabilitation — specific deterrence — general deterrence — double jeopardy

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    appeal against sentence — importing a marketable quantity of a border controlled drug offence contrary to s 307.2(1) of the Commonwealth Criminal Code, trafficking a controlled drug offence contrary to s 302.4(1) of the Commonwealth Criminal Code — offending relates to 390.8g of pure MDMA and 44.8g of pure ketamine respectively — original sentence imposed 4 years’, 2 months and 13 days with a 16 month non-parole period — manifest inadequacy — sentence imposed for importation offence is at lower end of available range — when compared with cases in the schedule, I am of the view that the head sentence of 3 years’ and 9 months for importation offence is not so low as to be manifestly inadequate — it is when non-parole period of 16 months is considered against total head sentence comprising of concurrent sentences for importation offence and possession offence that question of whether sentence falls outside range of sentences available to the sentencing judge arises, 30% of resulting head sentence — nature and circumstances of the offence — s 16A(2)(a) — sentencing judge found that offender engaged in minor way in the sale of illicit drugs prior to committing the importation offence and that none of the usual indicia of trafficking were present in their home — character — s 16A(2)(m) — offender is a first-time offender — rehabilitation — s 16A(2)(n) — offender removed themselves from drug use after their arrest and has good prospects for rehabilitation — specific deterrence — s 16A(2)(j) — general deterrence — s 16A(2)(ja) — must be acknowledged quantity of MDMA imported and offender’s principal role in facilitating and taking delivery of it required a significant sentence reflecting need for personal and general deterrence — appeal judge of opinion that whilst there were matters personal to offender that may justify a lower non-parole period, the non-parole period imposed was manifestly inadequate — double jeopardy — in determining whether to grant Director permission to appeal, court must have regard to circumstances that will produce an injustice if appeal is allowed — over 3 years since offender arrested — they were employed up until taken into custody, removed themselves from drug use whilst on bail, served 5.5 months of immediate custodial sentence expecting to be eligible for parole in about 10 months or considered for early release on home detention — these matters must be considered by court in exercise of residual discretion — appeal judge acknowledged public policy considerations for granting permission to appeal, not satisfied that these considerations outweigh countervailing public interest in protecting persons from double jeopardy — permission to appeal refused
  • 9 June 2020 —

    Waterstone v The Queen [2020] NSWCCA 117 — child exploitation offences — non-parole period — nature and circumstances of the offence — rehabilitation — character

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    appeal against sentence — 4 counts of using a carriage service to offend offence contrary to s 474.17(1) of Commonwealth Criminal Code — additional State offences — original sentenced imposed 3 years’ and 1 month imprisonment — non-parole period — no non-period period considered — error established as sentencing judge did not explain why they considered an effective fixed sentence of 3 years and 1 month without release on parole and/or a recognizance was warranted in this matter — justifying such a course on the basis of length of individual sentences and fact offences were both State and Commonwealth offences did not explain why such a long sentence without parole for a sex offender assessed as having a medium to low risk of re-offending was warranted — do not consider position of offender’s counsel before sentencing judge to preclude intervention of this court, error having been established — nature and circumstances of the offence — s 16A(2)(a) — question of whether sentencing judge erred in finding regarding objective seriousness is question of whether the finding was open — not element of offence under s 474.17 that victim is a child nor that conduct is of sexual nature — this makes offender’s conduct of sending offensive texts of their penis to their stepdaughter a serious example of an offence under this section — appeal judge found no error in sentencing judge’s finding that such conduct was highly offensive — satisfied it was open to sentencing judge to make findings of objective seriousness that they did — re-sentence —— offender not shown any remorse, demonstrated audacious and arrogant attitude towards victim, offending was not isolated and spanned over number of years and victim impact statement showed profound impact of offending on victim — rehabilitation — s 16A(2)(n) — character — s 16A(2)(m) — unable to find good prospects of rehabilitation or unlikely to offend — although applicant was of previous good character, their pattern of repeat offending took place over period of time — mitigate the sentence on account of two significant assaults in custody which constitutes a degree of extra-curial punishment — imposed total effective sentence of 2 years’ and 3 months imprisonment to then by released by way of recognizance order to be of good behaviour for 11 months
  • 29 May 2020 —

    Nipoe v The Queen [2020] VSCA 137 — drug importation — parity — general deterrence — nature and circumstances of the offence — rehabilitation — manifest excess

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    appeal against sentence — attempt to possess a marketable quantity of an unlawfully imported border controlled drug offence contrary to s 11.1(1) and s 307.6(1) of the Commonwealth Criminal Code, attempt to possess a commercial quantity of an unlawfully imported border controlled drug offence contrary to s 11.1(1) and s 307.5(1) of the Commonwealth Criminal Code — offences relate to 544.6g of pure methamphetamine and 8.634kg of pure methamphetamine respectively — original sentence imposed 15 years imprisonment with an 11 year non-parole period — parity — sentencing judge erred in that a s 6AAA declaration is not a relevant consideration for the fixing of a sentence relating to a co-accused; taking it into account in that way is an error of principle and would be sufficient to vitiate the sentence — not persuaded any different sentence should be imposed on charge 1 — charge 1 very serious instance of marketable quantity offence, involving as it did almost three quarters of commercial quantity of methamphetamine — other things being equal, the greater the quantity imported (or possessed) the more serious the offence — offender pleaded not guilty and had little to call in aid by way of mitigation — general deterrence — s 16A(2)(ja) — in sentencing for offences of this kind, general deterrence assumes prominence: it is necessary to deter those who might be tempted by the enormous rewards flowing form illicit trade in illegal drugs — giving paramount consideration to general deterrence and denunciation may legitimately result in less weight being given to factors personal to offender — those matters in mitigation should never fall from sight but they must be balanced against serious nature of offence — the individual sentences were far from manifestly excessive — nature and circumstances of the offence — s 16A(2)(a) — although method of importation relatively straight forward through the post, it plainly involved planning and investment — deployment of counter-surveillance techniques further demonstrates that this was a considered and organised undertaking — very significant factor that offender committed second offence, involving much greater quantity of drugs, while they were on bail for the first offence — rehabilitation — s 16A(2)(n) — judge unable to make any findings as to rehabilitation — manifest excess — separate criminality involved in each offence meant that high degree of cumulation was called for — examination of sentences imposed in other cases which having regard to quantity of drugs involved may be considered comparable, suggests that the individual sentences are lenient and total effective sentence is consonant with current sentencing practice — unable to accept submission that total effective term of imprisonment of 15 years for overall level of criminality involved is out of step with sentencing practices for this type of offending across the Commonwealth — appeal dismissed
  • 29 May 2020 —

    Booth v Granata [2020] FCA 768 — terrorism offences — interim control order — reporting condition — notification of paid employment — communications and associations with particular persons — technology platforms — restriction on use or internet service

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    interim control order — s 104.4(1) — engaging in conduct in preparation for incursions into foreign country for purpose of engaging in hostile activities offence contrary to ss 11.2A and 119.4(1) of Commonwealth Criminal Code — original sentence imposed 4 years imprisonment with 3 year non-parole period — parole not granted — sentence expired on 8 May 2020 — offender does not oppose making of ICO but does contend that not all controls sought are reasonably necessary or reasonably appropriate and adapted — motivation of offender and co-offenders was to bring about circumstance by which Southern Philippines would be governed by Islamic law — reporting condition — requirement to report at police station each Monday and Thursday between 7am and 7pm not appropriate during continuance of current COVID-19 pandemic — offender not been subject to reporting requirement in 3 weeks since release from prison — arrangement necessarily made in circumstances of COVID-19 to report by Skype tends to undermine necessity to be reporting personally with frequency sought — judge not satisfied twice-weekly reporting is reasonably necessary for a s 104.4(1)(d) purpose — offender to report once each week at nominated police station — notification of paid employment — order sought prohibiting offender from undertaking paid work without having first notified AFP superintendent in writing — having regard to offender’s occupation employment or work may be intermittent casual or short term in which case control would become more burdensome — if purpose of condition is to enable AFP to have information as to places at which offender is working and identity of employer and workmates, this could be achieved be less stringent requirement — proposed Control 9 not imposed but Booth given opportunity to put forward a different control — communications and associations with particular persons — offender contends they should not be precluded from associating and communicating with one person specified in proposed ICO — nearly six year have elapsed since offender had discussions about topics of concerns with person —  no evidence concerning conduct of person in question since 2014 and restrictions on association with this friend may impede offender’s ability to obtain paid work — not satisfied control concerning association with this person is appropriate — technology platforms — offender seeks access WhatsApp, Facebook Messenger and Facebook — these platforms can be used for benign purposes and malign purposes — there may be case for allowing offender to use platforms but only for employment related purposes — such control relaxation may be appropriate if monitoring is available and conditions that prevent deletion or entries or so to disguise use — Court presently does not have information about matters and so is not willing to carve out from control sought use of Facebook Messenger and Facebook and other platforms — restriction on use or internet service — offender sought to be permitted to use single cellular mobile and 4G data service approved by AFP — not satisfied that carve-out proposed by offender would diminish extent of control proposed — otherwise proposed control is appropriate — each of the undisputed controls are reasonably necessary and reasonably appropriate and adapted for s 104.4(1)(d) purposes
  • 28 May 2020 —

    R v Luiz Diego Mouzinho de Lima [2020] NSWDC 249 — drug importation — guilty plea — contrition — nature and circumstances of the offence — co-operation — hardship to the offender — character — rehabilitation — specific deterrence — general deterrence

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    sentence — importing a marketable quantity of a border controlled drug offence contrary to s 307.2(1) of the Commonwealth Criminal Code — offence related to 904.3g of pure cocaine — guilty plea — s 16A(2)(g) — contrition — s 16A(2)(f)(ii) — is utilitarian benefit that flows from the early plea of guilty — plea reflects more than only recognition of inevitable — plea demonstrates genuine remorse, acceptance of responsibility and a willingness to facilitate the course of justice — offender expressed remorse in evidence and to others, with expression presented as fulsome and genuine — gave evidence of actual knowledge and payment, both these aspects against offender’s interest and would have otherwise been difficult for prosecution to establish — nature and circumstances of the offence — s 16A(2)(a) — offender’s role to be determined based upon scrutiny of what they did and when they did it — had direct contact with sender of consignments — to accept their acts and the extent of their involvement is to recognise the important of their role but also to recognise that it is not demonstrative of higher status within the syndicate — offender involved for financial gain to pay for medical treatments for recurrence of Hodgkin’s lymphoma— offence assessed as serious and one that falls just below the mid-range for an offence of this type — sentencing judge accepted that personal issues caused offender to engage in uncharacteristic activities — regard this as minimally lessening moral culpability — co-operation — s 16A(2)(h) — offender made some admissions to police which, to a limited extent, are to their advantage — to be remembered that offender arrested in possession of the substituted drugs, police had access to their messages and they lied about some aspects of their involvement — the prevailing circumstances allow for plea to be recognised by reduction in sentence of 25% — hardship to the offender — sentencing judge accepted that offender’s conditions in custody must be more onerous given the limited opportunity for visits from family — character — s 16A(2)(m) — offender of prior good character with no prior convictions — sentencing judge did not determine that good character should be limited in any way or that it was utilised in commission of offender — rehabilitation — s 16A(2)(n) — assess offender’s risk of recidivism as low, offending presents as an aberration — excellent prospects of rehabilitation — specific deterrence — s 16A(2)(j) — evidence enables sentencing judge to be satisfied that offender unlikely to re-offend and personal deterrence is of limited significance — general deterrence — s 16A(2)(ja) — importance of general deterrence and denunciation and importance of reducing level of access to illicit drugs due to the enormous damage inflicted by them upon society — these drugs were not disseminated into the community — sentence — imposed 7 years imprisonment with a 4 year non-parole period
  • 28 May 2020 —

    DPP v Rohi [2020] VCC 713 — attempting to possess drug offence — guilty plea — contrition — mental condition — nature and circumstances of the offence — antecedents — rehabilitation — age — deportation — hardship to the offender — character

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    sentence — attempting to possess a marketable quantity of an unlawfully imported border controlled drug contrary to s 11.1(1) and 307.6(1) of Commonwealth Criminal Code — offence relates to 6,367.8g of pure opium — guilty plea — s 16A(2)(g) — community been spared time and cost of trial and witnesses not required to give evidence — offender’s plea of guilty has utilitarian benefit — contrition — s 16A(2)(f)(ii) — sentencing judge prepared to accept guilty plea indicates remorse for offending now, although sentencing judge concerned about extent of remorse given texts messages the day prior to offender’s arrest, discussing potentially further such transactions — mental condition — s 16A(2)(m) — offender suffers Post-Traumatic Stress Disorder related to their traumatic childhood — sentencing judge agreed that principles 5 and 6 of Verdins are enlivened — nature and circumstances of the offence — s 16A(2)(a) — offender’s role to provide an address for product that was to be sent — offender a willing participant, providing home address and personal details to collect item and retain until subsequent collection — moral culpability for this offending is high — offender integral part of it, although sentencing judge accepted moral culpability slightly lowered as result of circumstances, including financial need — antecedents — s 16A(2)(m) — sentencing judge accepted offender’s background is one involving hardship — rehabilitation — s 16A(2)(n) — regarding risk of re-offending, relying on your lack of criminal history, age at time of this offending and no subsequent offending since arrest, sentencing judge regards offender’s prospects of rehabilitation as this stage as good, although much will depend on their financial situation — in fixing appropriate sentence, sentencing judge must seek to maximise offender’s chances of rehabilitation as they may be — age — s 16A(2)(m) — whilst offender not a young offender as defined in Sentencing Act 1991, sentencing judge accepted that at age 26 (of offending) offender’s rehabilitation prospects (at 29) are a relevant sentencing consideration — deportation — prosecution conceded offender would be concerned about potential deportation and that of offender’s partner — that such could be taken into account as making offender’s time in prison more onerous being so concerned, including reference to Zhao v The Queen — sentencing judge accepted offender will be anxious about likely deportation and accepted that uncertainty will make offender’s time more difficult for them than a prisoner without that uncertainty — hardship to the offender — sentencing judge took into account this is offender’s first time in custody and that their English is limited — character — s 16A(2)(m) — offender’s prior good character, whilst relevant, has less weight in these types of cases than might otherwise apply — sentence — imposed 4 years’ imprisonment, with a 2 year and 3 month non-parole period — s 6AAA — had offender not plead guilty, would have imposed 6 years’ imprisonment with a 4 year and 4 month non-parole period
  • 27 May 2020 —

    Weber v The Queen [2020] NSWCCA 103 — drug importation offence — guilty plea — nature and circumstances of the offence — contrition — co-operation — antecedents — rehabilitation

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    appeal against sentence — importing a marketable quantity of a border controlled drug offence contrary to s 307.2(1) of the Commonwealth Criminal Code — offence relates to 60.5g of pure methylamphetamine — original sentence imposed 7 years’ and 11 months imprisonment with a 5 year and 6 month non-parole period — guilty plea — s 16A(2)(g) — Crown expressly conceded that in light of Xiao, the sentencing judge in the present case had erred in failing to have regard to the utilitarian value of offender’s plea of guilty, and that the ground of appeal was made out — no dispute offender pleaded guilty at first available opportunity, which is some evidence of remorse and acceptance of responsibility — 25% discount allowed — re-sentence — nature and circumstances of the offence — s 16A(2)(a) — offender performed an obviously important function, without which the importation could not have been effected — evident from method of concealment that offender engaged in considerable preparation and planning in an attempt to ensure that the presence of the drug would not be detected — offender expressly conceded that he was not forced to commit offence and did so because of promise of financial reward — amount of drug imported was 30 times marketable quantity, which is substantial — contrition — s 16A(2)(f) — practice of offender providing handwritten letter to sentencing judge without being cross-examined on its contents has been the subject of criticism — where expressions of remorse by offender are untested, appeal judge placed little weight on its contents — co-operation — s 16A(2)(h) — naming others involved in important was significant — information was provided spontaneously — no suggestion in deciding to assist police in that way, offender was motivated by desire to secure a discount — if federal offender has co-operated with authorities, they are entitled by virtue of s 16A(2)(h) to have that factor taken into account on sentence, no fixed tariff to be applied — usefulness of co-operation provided will be relevant in considering nature and extent of co-operation, and in assessing quantum of any discount which is to be applied — absence of evidence establishing usefulness of co-operation does not lead to conclusion that there should be no discount at all, although in such circumstances the discount may be less than would otherwise be the case — 5% discount to reflect co-operation with authorities — antecedents — s 16A(2)(m) — criminal history disentitles offender to leniency — rehabilitation — s 16A(2)(n) — offender is yet to successfully address issue of drug use — doing so is fundamental to offender’s successful rehabilitation — in light of offender’s history in this regard, their prospects of rehabilitation must remain guarded against sentence — sentence — offender sentenced to 7 years’ and 5 months imprisonment with a 5 year and 2 month non-parole period
  • 22 May 2020 —

    DPP v Nguyen [2020] VCC 639 — drug importation offence — character — nature and circumstances of the offence — guilty plea — rehabilitation — COVID-19 — general deterrence — specific deterrence

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    sentence — importing commercial quantity of border controlled substance offence contrary to s 301.11(1) of Commonwealth Criminal Code — offence relates to 8.27kg of pure pseudoephedrine — character — s 16A(2)(m) — offender under pressure financially — offender has no criminal history and no matters pending in court — sentencing judge took this into account as indication of offender’s good character and also took into account references all of which speak of offender’s honesty in dealing with family and friends and care and attention to their family — nature and circumstances of the offence — s 16A(2)(a) — no evidence offender to receive financial reward commensurate with potential earnings from sale of substance, offender admitted they were to receive payment for importation of it — no evidence of larger organisation of which offender were a part or acting alone — amount of drug carried was significant, placing offending clearly above that of low level — engaged in conduct in order to receive financial benefit and whilst motive for doing so was financial concerns, this does not mitigate offending or moral culpability — guilty plea — s 16A(2)(g) — indicated willingness to plead guilty at first reasonable opportunity — plea warrants significant mitigation of sentence both because of utilitarian benefits flowing from it and indication of remorse — sentencing judge accepted offender is remorseful, and that the shame and sorrow offending feels for putting themselves and their family in this position will act as a deterrent upon offender from committing further offences in the future — rehabilitation — s 16A(2)(n) — whilst it is of concern that debt led offender to offend will still burden offender upon release, sentencing judge accepted that offender’s remorse, sense of shame, prior good character, and controlling effect of offender’s family upon offender in the future and the deterrence effect of offender having been caught and gaoled for this offender are all powerful factors affecting your future conduct — taking those matters into account, sentencing judge considered that offender’s prospects of rehabilitation are very good — COVID-19 — concerns for family are heightened by COVID-19 issues, particularly in view of daughter’s asthma and father’s diabetes — sentencing judge accepted these matters way upon offender and concerns make imprisonment more burdensome than if these issues were not in existence, taken into account — general deterrence — s 16A(2)(ja) — specific deterrence — s 16A(2)(j) — specific deterrence is relevant in offender’s circumstances as financial pressure that led offender to offend will not have ceased — sentence also intended to act as deterrent to others who may consider such offender, which is an important consideration in relation to offending of this nature — this sentence will also punish offender for offending — sentence — 6 years’ imprisonment with a 4 year non-parole period
  • 21 May 2020 —

    R v Ali [2020] VSC 316 — preparatory terrorism offence — nature and circumstances of the offence — guilty plea — contrition — rehabilitation — age — specific deterrence — COVID-19

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    sentence — intentionally doing an act in preparation for, or planning, a terrorist act offence contrary to s 101.6(1) of the Commonwealth Criminal Code nature and circumstances of the offence — s 16A(2)(a) — objective seriousness not to be determined by reference to proximity of intended acts to its actual commission, but rather offender’s conduct and intention at time crime was committed — if ultimately carried out, acts offender planned would have caused death and serious injury to multiple members of Australian community, intending for possible range of 200 casualties — relevant consideration that offender’s plan involved mass casualty event, thus elevating gravity of your offence to more serious level than had planned to kill or injure one victim or destroy property — intention to take revenge and intimidate Australian community with objective of motivating other Muslims to rise up against Australian government and wider community — taking into account all circumstances, assessment of objective gravity of offence to which you have pleaded guilty requires that it be regarded as very serious offending — offender clearly had capacity to know what offender was setting out to do and know that it was wrong — offender young man heavily influenced by terrorist propaganda and other extremist material, absorbed and heavily influenced by it, put significant effort into engaging with ISIS with respect to acquisition of a weapon and other items to carry out intended attack — acquisition of items to carry out attack and preparation beyond talking and thinking did not develop past second conversation although intention persisted until point of arrest — assessed at high level of culpability for offence although moderated due to offender’s youth and susceptibility of persuasion by vicious and insidious nature of propaganda expounded by Islamic state — guilty plea — s 16A(2)(g) — not early guilty plea so do not qualify for full discount that otherwise might have been available — it is to be acknowledged that by pleading guilty offender facilitated course of justice and plea has utilitarian value in that it has saved resources of this court and trouble of proceeding to jury trial — contrition — s 16A(2)(f) — important factor in assessment of appropriate sentence in offender’s case — sentencing judge satisfied offender expressed genuinely held remorse — offender’s evidence was frank and candid and evidence supported by members of offender’s family who remain committed and supportive of offender as well as psychologist’s evidence — rehabilitation — s 16A(2)(n) — ongoing supportive role of offender’s family as very important part in journey to rehabilitation — offender gave evidence before sentencing judge in which offender publicly renounced ISIS and violent jihad — sentencing judge satisfied offender genuinely renounced ISIS and its extremist agenda — renunciation was public which in itself is a matter of significant — offender presently has fluidity of beliefs that whilst offender has undertaken important transformative steps to demonstrate reformation and rehabilitation, process is not yet complete however acknowledge offender made significant steps towards rehabilitation as result is relevant to the question of specific deterrence and protection of community — prospects of rehabilitation appear promising but sentencing judge acknowledges it is still early in the process, still some steps for offender to complete but appears to sentencing judge to be a promising young person — age — s 16A(2)(n) — offender 20 years old at time of offending — whilst conceded weight to be attached to youth is less than it would be for less serious offence, youth nevertheless still remains relevant factor in instinctive synthesis, particularly insofar as assessment of offender’s moral culpability for offending is concerned — thought offender gave and degree of research and preparation show degree of commitment to objective that was more than mere impulsivity — moderating effect of youth remains relevant factor required to be taken into account despite serious offending — offender’s youth, combined with support of family, might be compared to hard-core offender of mature years who is less likely to be amenable to rehabilitation than a person who has support offender has — specific deterrence — s 16A(2)(j) — protection of community is highly significant factor in cases involving terrorism — COVID-19 — impact of COVID-19 while offender in custody will likely cause additional subjective stress and concern for prisoners and families as to how virus might impact on those incarcerated — for some time there will be uncertainty and this may hinder offender’s prospects of rehabilitation and make time spend in custody more onerous for period that possibility of infection remains current — should not act on basis that any additional burdens will last for duration of offender’s sentence — sentence — offender sentenced to 10 years’ imprisonment with a 7 year and 6 month non-parole period
  • 20 May 2020 —

    R v Ibrahim [2020] NSWDC 254 — drug important and dealing with instrument of crime offences — guilty plea — nature and circumstances of the offence — entrapment — general deterrence — specific deterrence — antecedents — hardship to the offender — contrition — rehabilitation

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    sentence — two counts of conspire to import a commercial quantity of a border controlled drug offence contrary to ss 11.5(1) and 307.1(1) of the Commonwealth Criminal Code — three counts of deal in an instrument of crime offences contrary to s 400.3(1) of the Commonwealth Criminal Code — offences relate to 594.43kg of pure MDMA for Count 1 and 737.55kg of pure MDMA, 91.87 kg of pure cocaine and 12.04kg of pure methamphetamine for Count 2, $2,863,870 for Count 3, $1,800,000 for Count 4 and $2,224,540 for Count 5 respectively — additional aid and abet, counsel or procure the commission of an offence, namely trafficking of a commercial quantity of MDMA offence contrary to ss 302.2(1) and 11.2(1) of the Commonwealth Criminal Code, smuggled tobacco products offence contrary to s 233BABAD of Customs Act 1901 (Cth) and offender did deal in proceeds of crime, namely money worth $1 million, offence contrary to s 400.3(1) of Commonwealth Criminal Code taken into account pursuant to s 16BA — guilty plea — s 16A(2)(g) — plea of guilty at first opportunity — having regard to complexity of issues and voluminous material, trial would have been a lengthy one, necessarily involving cross-examination of the undercover operative who was central to criminal enterprise — significant utilitarian value in plea of guilty so reduction in sentence of 25% — notwithstanding strength of Crown case, sentencing judge satisfied guilty plea also reflects a willingness on the part of the offender to facilitate the administration of justice — nature and circumstances of the offence — s 16A(2)(a) — weight of drugs and value of drugs was substantial, each conspiracy to import border controlled drugs involved a high degree of criminality — although sophisticated, sentencing judge not persuaded the degree of sophistication exceeds that inherent in offences of this type — having regard to quantity and value of drugs, nature of conspiratorial agreement and methodology used, sentencing judge satisfied each conspiracy is properly characterised as objectively very serious — fact that number of offenders were acting in concert to achieve unlawful acts did not increase likelihood of crime occurring because of nature of undercover operation, sentencing judge not persuaded that offences of conspiracy here are more serious than substantive offences — primary consideration remains that offender intended substantial quantities of drugs reach Australia to be disseminated into community and through no act of theirs that no such risk arose — in respect of each conspiracy offence, sentencing judge found objective seriousness to be of a high (as opposed to the highest order) having regard to substantial quantity of border controlled drugs the subject of the conspiracies, the planning, organisation and methodology involved, the lengthy period of several months over which each conspiracy was on foot, and the degree of coordination and communication between Sydney-based and overseas syndicates — while role not principal in each conspiracy, offender a trusted and wiling participant who engaged in criminality expecting significant financial gain — in respect of each tobacco transaction, offender played senior role, was personally invested and obtained substantial financial benefit — entrapment — whether and to what extent the involvement encouragement or incitement by police operates to reduce an offender’s culpability must be judged on the basis of the facts in each case — undercover operative pivotal in offending conduct from very outset — no evidence offender engaged in or contemplated dealing in tobacco or agreeing to import large quantities of border control drugs prior to undercover operative’s involvement — sentencing judge persuaded offender’s culpability diminished but not substantially as degree of encouragement and perhaps enticement on undercover operative’s part, but no coercion or pressure was applied — offender not reluctant or unwilling participant — general deterrence — s 16A(2)(ja) — specific deterrence — s 16A(2)(j) — general and specific deterrence and denunciation are important sentencing considerations in this case having regard to duration and nature of criminality — antecedents — s 16A(2)(m) — as offender has prior criminal offences, not entitled to leniency for first-time or minor record offender — hardship to the offender — real chance offender’s mother will never see offender as a free person and due to failing health is no longer able to visit her child in custody — inability to see their mother will weigh heavily on offender during time in custody — contrition — s 16A(2)(f) — offender’s letter does not contain apology or any expression of remorse — guilty plea reflects some remorse on offender’s part although strong Crown case against them — little other evidence to demonstrate remorse or contrition — rehabilitation — s 16A(2)(n) — having regard to criminal record and nature and extent of offender involved in these offences, sentencing judge guarded about future prospects of rehabilitation — sentence imposed 30 years’ imprisonment with a 18 year non-parole period
  • 20 May 2020 —

    R v Buttigieg [2020] SASCFC 38 — drug importation — manifest inadequacy — double jeopardy — nature and circumstances of the offence — general deterrence — specific deterrence — guilty plea — rehabilitation

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    appeal against sentence — importing a marketable quantity of a border controlled drug offence contrary to s 307.2(1) of the Commonwealth Criminal Code — offence related to 134.5 grams of pure cocaine — additional offence of obstructing a Commonwealth public official offence contrary to s 149.1 of Commonwealth Criminal Code taken into account pursuant to s 16BA(1) — original sentence imposed 2 years’, 11 months and 3 weeks imprisonment, released upon a recognizance release order upon giving security of $5,000 and good behaviour for 2 years’ and 6 months — manifest inadequacy — well established that leave should only be granted with respect to Crown appeals against sentence in cases that are ‘rare and exceptional’ — Crown will be granted permission to appeal if necessary to enable Court to establish and maintain adequate standards of punishment for crime; enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected; or if sentence so far below appropriate range of sentences that sentence reflects error of principle or would ‘shock the public conscience’ — both error and strong reasons of public policy are required to justify appellate intervention in sentence said to be manifestly inadequate — error must be identified before an appellate court may interfere — manifest inadequacy is a conclusion — on Crown appeal, Court must first deal with question of permission to appeal before determining whether the appeal should be allowed — double jeopardy — this Court has determined on numerous occasions that common law principle of double jeopardy continues to apply in respect of an application by South Australia Director of Public Prosecutions for permission to appeal against sentence — High Court in Bui v DPP (Cth) observed ‘double jeopardy’ has been used to describe distress and anxiety a convicted person may feel when faced with the prospect of re-sentencing — the ‘presumed stress and anxiety’ discussed at the permission stage is relevant to the question of a person being twice vexed by the repeated exercise of the coercive power of the State — s 157(1)(a)(iii) and s 150 of the Criminal Procedure Act (SA) are picked up by Section 68(2) of the Judiciary Act which provides the South Australian Director of Public Prosecutions may appeal against a sentence passed on the conviction of a person on any ground with the permission of the Full Court — once permission to appeal is granted, s 150 precludes the Court from having regard to ‘double jeopardy’ if and when a court decides to re-sentence for Commonwealth offences, however principle of double jeopardy still applies at the permission stage of a Crown appeal on sentence for both State and Commonwealth offences — to suddenly reverse the decision and impose custodial decision may produce injustice, court can exercise discretion and refuse permission to prevent a person being twice vexed by repeated exercise of coercive power of the State — appeal judge held Director has established that sentence imposed by sentencing judge outside range of sentences available — nature and circumstances of the offence — s 16A(2)(a) — general deterrence — s 16A(2)(ja) — specific deterrence — s 16A(2)(j) — guilty plea — s 16A(2)(g) — size of importation, detailed nature of plan to import and type of drug involved called for sentence which reflected principles of general and personal deterrence — 20% discount allowed by sentencing judge for late plea of guilty was too generous — sentence was manifestly inadequate — rehabilitation — s 16A(2)(n) — where defendant is serving sentence which has been suspended, an appellate court should hesitate to impose a custodial sentence which would frustrate the earlier sentence and deprive defendant of opportunity to rehabilitate themselves, particularly when they have already demonstrated that they are on the path to successful rehabilitation — the public interest in ensuring that offender is not twice vexed by repeated exercise of coercive power of the State leads to conclusion that to allow appeal would be at too high a cost, in terms of justice, to offender — permission to appeal refused
  • 12 May 2020 —

    R v Silver [2020] QCA 102 — corporate offences — manifest excess — nature and circumstances of the offence — cumulative and concurrent sentences

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    appeal against sentence — 6 counts of using position dishonestly with intention of gaining financial advantage offence contrary to s 184(2)(A) of Corporations Act 2001 (Cth) — offence relates to $1,635,000.00 — additional state offences — original sentence imposed 3 years’ imprisonment with 2 year and 6 month non-parole period — offender sentenced to 8 years imprisonment for state offences — manifest excess nature and circumstances of the offence — s 16A(2)(a) — offender director of one scheme and shadow director of other — in both schemes offender was principal decision-maker and in complete control of movement of investment moneys— offender dishonestly dissipated funds for purposes other than those for which investors made investment and contrary to representations made to those investors — assertion that sentencing judge failed to give appropriate weight to various factors in sentencing process absent specific error is insufficient to establish that sentence imposed was manifestly excessive — sentencing process involves exercise of discretion — no one single correct sentence — sentencing judge had regard for offender’s youth and vulnerability as well as circumstances that offending occurred against background of offender’s father’s involvement in earlier dishonest schemes and current schemes — no basis to conclude that sentencing judge failed to determine relevant dispute of facts — testing evidencing borderline intellectual functioning was taken into account — sentencing judge rightly observed that finding must be viewed in context of sophisticated scheme where offender was actively involved in key aspects of that offending including preparation of false documentation and dishonest use of position as director — offender significantly benefited financially from dishonest conduct — offender’s involvement over extended period of time in sophisticated scheme by which multiple investors were defrauded of large sums for offender’s benefit warranted prior to cooperation pursuant to section 13A an effective head sentence of 10 years’ imprisonment even allowing for youth lack of criminal history relationship with father psychological factors and pleas of guilty — no basis to conclude that sentences imposed were manifestly excessive — reductions evidenced proper reflection of extent of applicant’s cooperation whilst also ensuring that sentences did not constitute affront to society — sentences were neither unreasonable nor plainly unjust — no misapplication of sentencing principles — sentences were not manifestly excessive — cumulative and concurrent sentences — structure of sentences on counts of dishonest use of position was not in accordance with provisions of Crimes Act 1914 (Cth) — error is to be corrected by ordering that in respect of each of those counts offender to be released on recognisance after serving 2.5 years of those sentences of imprisonment — leave to appeal granted — appeal against sentence allowed — sentences imposed to be varied such that offender is sentenced to 3 years imprisonment on each count with order that they be released on recognisance under s 19AC of Crimes Act after serving 2.5 years — offender is to give security after offender has served period of imprisonment in amount of $2000
  • 8 May 2020 —

    R v Logue [2020] ACTSC 115 — child exploitation offences — nature and circumstances of the offence — character — rehabilitation — general deterrence — hardship to the offender — guilty plea — COVID-19

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    sentence — preparing for or planning to have sexual intercourse with a child outside of Australia offence contrary to ss 272.8 and 272.20(1) of Commonwealth Criminal Code, use of carriage service to access child abuse material offence contrary to s 474.22 of Commonwealth Criminal Code, possessing or controlling child abuse material obtained or accessed using a carriage service offence contrary to s 474.22A of Commonwealth Criminal Code nature and circumstances of the offence — s 16A(2)(a) — because sentencing judge concluded the planning for sexual intercourse with a child outside Australia offence was probably incapable of being put into effect, the offence is below medium objective seriousness — the other 2 counts should probably be seen as being of medium objective seriousness, because any offence of this type is serious — the fiction of assessing seriousness has its place in a comparison between the most trivial and the most serious — however as to the very large space in between sentencing judge is not sure that any particular assessment is very relevant — character — s 16A(2)(m) — rehabilitation — s 16A(2)(n) — general deterrence — s 16A(2)(ja) — what is important here is the balance between on one hand the offender’s previous good character, their apparent remorse and insight, the limited likelihood of re-offending and their prospects of rehabilitation against, and on the other hand, the overwhelming wrongfulness of child exploitation and the need for public deterrence — potential viewers and collectors of material of this sort must be left in no doubt that, if caught, they are almost certainly facing a prison sentence — hardship to the offender COVID-19 — sentencing judge accepted COVID-19 is a relevant factor — visits to prison are an important element in ensuring the welfare of the inmates — it is important for sentencing judge to take into account the effects of the virus, both potential and existing, upon the offender — the result cannot however divert sentencing judge from conclusion that they must serve a period of time in full-time custody, but it is relevant to the length of that time — guilty plea — s 16A(2)(g) — a combination of the discount for the pleas of guilty and the relevance of the pandemic result in a discount of 25% — sentence — 18 months and 28 days imprisonment imposed, 3 months to be served by way of full-time custody then imprisonment suspended on condition offender enter into a recognizance release order
  • 8 May 2020 —

    Hijazi v The Queen [2020] NSWCCA 97 — drug importation offence — extension of time to bring appeal — guilty plea

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    appeal against sentence — attempt to possess substance having been unlawfully imported and a border controlled drug offence contrary to ss 307.6(1), 11.1(1) and 11.2A(1) of the Commonwealth Criminal Code —  offence relates to 684.8 grams of pure cocaine — original sentence imposed 5 years’ and 10 months imprisonment with a 3 year and 4 month non-parole period — nature and circumstances — s 16A(2)(a) — offending objectively serious — offender had not profited from enterprise only because it was unsuccessful and offender had been financially motivated in his offending — offending was objectively serious — guilty plea — s 16A(2)(g) — timing of the plea was very late — discount of 10% was appropriate for utilitarian value of plea and factors taken into account by sentencing judge in reach that discount — hardship to the offender — sentencing judge took into account as mitigating factor that offender’s mental health would make time in custody more onerous — offender’s evidence in these proceedings raises some doubt as to whether allowance on sentence for this factor was entirely necessary given offender has functioned well in custody — extension of time —  offender brought appeal over two years later — overall period of deal is of some significance having regard to public interest in avoidance of delay and principle of finality — explanation was provided for delay although here remains considerable gap between the mistaken advice to withdraw notice of intention to appeal and lodging of application for leave to bring this appeal — extension of time sought should be refused for first and primarily lack of merits of proposed appeal given lack of prospects of obtaining lesser sentence if offender was resentenced notwithstanding finding of Xiao error and secondly delay is very lengthy and explanation for delay does not wholly account for period of delay — application for extension of time to seek leave to appeal against sentence refused
  • 7 May 2020 —

    DPP v Milla [2020] VCC 546 — tax offences — character — nature and circumstances of the offence — reparation — general deterrence — guilty plea — contrition — delay — rehabilitation

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    sentence — 1 count of dishonestly causing loss or risk to Commonwealth knowing or believing loss would occur or there was substantial risk of loss occurring offence contrary to s 135.1(5) of the Commonwealth Criminal Code, 1 count of dishonestly causing loss to Commonwealth offence contrary to s 135.1(3) of the Commonwealth Criminal Code — offences relate to $990,820 and $9,618.90 respectively — character — s 16A(2)(m) — offender has no prior criminal history and committed no subsequent offences — character references make it clear present offending out of character for offender — accordingly, offender to be sentenced as person of otherwise good character — nature and circumstances of the offence — s 16A(2)(a) — offender was sole director secretary and shareholder of SHG — while to some extent offender a ‘nominal’ director, offender willingly carried out their part in overall tax evasion scheme — offender played critical role and by plea has admitted acting dishonestly throughout the charged period — moral culpability assessed as being relatively high — while offender was not instigator of scheme gives rise to charges nonetheless offender must have had some awareness of what was occurring and offender played part in scheme as directed by others — offences were continuing ones committed over almost 34 month period — Count 1 involves serious offending and significant sentence of imprisonment is called for in order to give effect to principles of denunciation general deterrence and just punishment — reparation — s 16A(2)(f)(i) — offender made reparation to ATO in amount sought by it of $247,705 — this is relevant to offender’s level of remorse and extent of loss suffered by Commonwealth as result of offending conduct — also specific mitigating factor — general deterrence — s 16A(2)(ja) — detection was made more difficult by payment of cash wages and employment of sub-contractors which had effect of shifting tax burden to entity that did not take responsibility for payment of its taxation obligations — investigation and prosecution of fraudulent scheme was complex, difficult, time consuming and resource intensive — those who systematically defraud revenue of large sums of money over extended period must in general expect to receive sentence of imprisonment — guilty plea — s 16A(2)(g) — pleas were entered at earliest forensically reasonable opportunity — pleas have significant utilitarian benefit considering likely length and complexity of any trial — pleas also indicate acceptance of responsibility for offending conduct and willingness to facilitate course of justice — contrition —  s 16A(2)(f)(ii) — true contrition and remorse evident from payment of large sum of money by way of reparation and expressions of remorse to employer and others as evidenced in testimonials tendered — delay — considerable systemic delay occasioned by progress of proceedings through courts, judge’s personal circumstances and effects of COVID-19 pandemic — offender has had matters hanging over them since February 2015 — since plea hearing 19 months ago offender has had very real prospect of sentence of imprisonment with component of immediate incarceration hanging over head — undoubtedly this would have caused significant stress and anxiety and contributed to breakdown in relationship and loss of employment — pleas of guilty and delay call for significant leniency — rehabilitation — s 16A(2)(n) — so far as rehabilitation during period of delay is concerned, offender lived exemplary life — sentencing judge assesses prospects of rehabilitation as being excellent — sentence — 3 years’ imprisonment imposed and $2500 fine, offender immediately released on recognisance release order — s 6AAA — sentencing judge would have imposed sentence of 5 years imprisonment with 3 year non-parole period but for offender’s guilty plea
  • 6 May 2020 —

    R v Kassir [2020] NSWCCA 88 — drug importation offence — manifest inadequacy — nature and circumstances of the offence — character — guilty plea

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    appeal against sentence — aided, abetted counselled or procured the commission of an offence by another person contrary to s 307.1(1) of the Commonwealth Criminal Code — offence related to 166 kilograms of pure methamphetamine — original sentence imposed 8 years’ imprisonment with a 5 year and 6 month non-parole period — manifest inadequacy — intervention only warranted where differences is such that there must have been some misapplication of principle or so far outside available range of sentences there must have been error — nature and circumstances of the offence — s 16A(2)(a) — did not seem of great significance that offender was charged with aiding and abetting importation rather than importation itself —although true offender did not use position to either directly interfere with or be involved in clearance and delivery of importation, offender instrumental in setting up structure by which importation was to take place — offender did so in knowledge that structure was going to be used to facilitate importation of substantial quantity of border controlled drugs — offender obtained template LOA, completed it with false information — offender directly involved themselves in first two consignment, rejected suggestion that after leaving DHL another company might clear future consignments and took steps albeit unsuccessful to contact DHL in respect of June consignment — offender used position with and knowledge of DHL to facilitate shipment — offender aware quantity to be imported was significantly more than threshold for commercial quantity — offence was within the mid-range of seriousness — offence involved setting up process which enabled very significant quantity of drugs to be imported into country release of which into community would have serious consequences — character — s 16A(2)(m) — while offender of otherwise good character, this is something generally given less weight as a mitigating factor in drug importation cases —  notwithstanding offender’s good character and prospects of rehabilitation, considerations of general and specific deterrence demand that more substantial sentence be imposed — sentence manifestly inadequate — re-sentence — guilty plea — s 16A(2)(g) — allowance for 15% discount for guilty plea — sentence — imposed 10 years’ imprisonment with a 6 year and 6 month non-parole period
  • 6 May 2020 —

    R v Morrison [2020] QCA 93 — drug trafficking offences — manifest excess — contrition — nature and circumstances of the offence — general deterrence

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    appeal against sentence — trafficking in dangerous drugs offence, failure to comply with order under s 3LA(5) of the Crimes Act 1914 (Cth) — additional summary offence taking into account — original sentence imposed 10.5 years’ imprisonment — offence relates to 441.7g of cocaine, 31.1g of methylamphetamine, 165.5g of MDMA and 522.4g of cannabis — manifest excess contrition — s 16A(2)(f)(ii) — offender appears to regard offending as victimless suggesting they still lack insight into seriousness of offending — nature and circumstances of the offence — s 16A(2)(a) — manifest excess — obvious that offence of trafficking in schedule 1 drugs is very serious one which is no less so for fact that offender is facilitating supply of substance to persons who wish to receive it — level of criminality involved in offence will vary from one case to another — scale of operation and likely profit to offender is obviously material — so too is commercial sophistication of enterprise where that is conducive to higher profits from offence and reduced risk of detection — shorthand description of drug dealing as being ‘wholesale’ level or ‘street level’ can be useful to describe scale of enterprise and thereby number of people who might have been affected by it — application of sentencing principles does not call for strict demarcation between wholesale and street level trafficking which offender suggests — sentencing judge correct to regard other offences committed by offender as worthy of cumulative terms of imprisonment — very sophisticated operation of trafficking conducted over extensive period and evidently very remunerative — cannot be thought that offender’s motivation was simply to feed own drug use — offender was mature offender — general deterrence — s 16A(2)(ja) — necessary for sentence to be imposed which acted as strong deterrent to people like offender who might consider that no real harm can come from their conduct and who are motivated by own greed — orders were within proper exercise of sentencing discretion — no manifest excess — application for leave to appeal against sentence refused
  • 1 May 2020 —

    R v Georgiou [2020] VCC 502 — tax fraud — nature and circumstances of the offence — contrition — reparation — general deterrence — guilty plea — delay — rehabilitation — offender’s family and dependants — mental condition — specific deterrence

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    sentence — 1 count of dishonestly causing loss to Commonwealth offence contrary to s 135.1(3) of the Commonwealth Criminal Code, 1 count of dishonestly causing a loss or risk of loss to Commonwealth knowing or believing there was a substantial risk of loss occurring offence contrary to s 131.1(5) of the Commonwealth Criminal Code — offences relate to $20,577 and $367,753 respectively — nature and circumstances of the offence — s 16A(2)(a) — involvement motivated by combination of loyal obedience to ACG corporate strategies and enhanced personal pursuit of career opportunities within ACG which to some extent lessens moral culpability — offender aware actively participating in substantial exercise which involved receipt of untaxed cash wages by large number of guards under four payrolls — moral culpability is moderately high — were it not for matters personal to offender, would have been found to be a serious example of offence and very high moral culpability — contrition — s 16A(2)(f) — reparation — s 16A(2)(f)(ii) — offender offered to repay $20,577 to the ATO — sentencing judge accepted that offender demonstrated true contrition and remorse for offending conduct — general deterrence — s 16A(2)(ja) —  detection more difficult by payment of cash wages and employment of sub-contractors, shifting tax burden to entities which did not take responsibility for payment of taxation obligations — investigation and prosecution of fraudulent scheme was complex, difficult, time consuming and resource intensive — guilty plea — s 16A(2)(g) — pleas entered at earliest forensically reasonable opportunity and offender was entitled to have this taken into account — significant utilitarian benefit considering likely length and complexity of any trial and large number of witnesses who would have needed to be called — offender was first of those involved in tax avoidance scheme to plead guilty — pleas also indicate an acceptance of responsibility for offending conduct and willingness to facilitate course of justice — delay — considerable systemic delay occasioned by progress of proceedings through court individual circumstances of judge and effect of COVID-19 pandemic —offender has had matters hanging over them for period of well over five years — delay calls for significant leniency to be extended — rehabilitation — s 16A(2)(n) — as far as rehabilitation during period of delay is concerned offender has lived exemplary life and prospects of rehabilitation are very good — offender’s family and dependants — s 16A(2)(p) — offender is mother’s primary carer, has had significant adverse effects on offender emotionally, mentally and to some extent physically — COVID-19 crisis has heightened offender’s concerns for wellbeing of parents — this is not a case where these circumstances warrant separate consideration outside conventional sentencing framework — concerns regarding welfare of parents would increase burden of imprisonment on offender — burden is more significant because current COVID-19 crisis means concern regarding parents’ situation would be elevated by reason of increased risk factors — mental condition — s 16A(2)(m) —  no mental condition offender may have been suffering at time of committing offences was in any way causative of offending conduct — all of offender’s current mental condition are either entirely reactive to current circumstances or have been significantly exacerbated by them — Verdins principle 5 engaged to some extent as offender’s depression and anxiety would have cumulative effect on their concern for mother’s predicament and inability to care and support her while serving custodial sentence — any sentence of imprisonment would weigh more heavily even if offender did not have psychological condition — specific deterrence — s 16A(2)(j) —  offender has learnt salutary lesson from investigation and prosecution of crime and is unlikely to reoffend — protective factor of living at home with aged parents whom offender cares for and supports — very little weight given to specific deterrence and community protection — sentence — imposed 3 years’ imprisonment, offender released immediately on recognisance release order and $5000 fine — s 6AAA — sentencing judge would have imposed sentence of 5 years and 6 months imprisonment with 3 year and 8 month non-parole period but for offender’s guilty plea
  • 30 April 2020 —

    R v Karam [2020] VCC 496 — tax fraud — mental condition — character — nature and circumstances of the offence — general deterrence — guilty plea — contrition — delay — rehabilitation

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    sentence — 1 count of dishonestly causing loss to Commonwealth offence contrary to s 135.1(3) of the Commonwealth Criminal Code, 1 count of dishonestly causing loss or risk of loss to Commonwealth knowing or believing that loss would occur or that there was substantial risk of loss occurring offence contrary to s 135.1(5) of the Commonwealth Criminal Code — offences relate to $12,948 and $1 million respectively — mental condition — s 16A(2)(m) — while mental health diagnosis not causally connected to offending conduct, it is relevant to offender’s personal circumstances — Verdins principle 6 is applicable to offender and sentenced accordingly — character — s 16A(2)(m) — relevant prior criminal history including 3 appearances involving dishonesty — given prior criminal history, specific deterrence and protection of community must be given some real weight in sentencing offender for offences — nature and circumstances of the offence — s 16A(2)(a) — offender held managerial position, sole director, secretary and shareholder — while offender not instigator of scheme, must have had some awareness of what was occurring and played part in scheme as directed by others — offences continued 30 month period — serious offending — offender vulnerable, unsophisticated and relatively unintelligent who was preyed upon by — reduces moral culpability particularly in relation to offending conduct giving rise to count 2 — having dissipated any financial gains received from crimes sentencing judge accepted that offender derived little long-term financial benefit from crimes — no evidence of offender living extravagant lifestyle during period of offending — general deterrence — s 16A(2)(ja) — detection more difficult by payment of cash wages and employment of sub-contractors, shifting tax burden to entities that did not take responsibility for payment of taxation obligations — investigation and prosecution of fraudulent scheme of which offender was a part was complex, difficult, time consuming and resource intensive — those who systematically defraud revenue of large sums of money over extended period must in general expect to receive sentence of imprisonment — guilty plea — s 16A(2)(g) — offender pleaded guilty at late stage in proceedings — pleas entered at earliest forensically reasonable opportunity —significant utilitarian benefit considering likely length and complexity of trial — pleas also indicate acceptance of responsibility for offending conduct and willingness to facilitate course of justice — contrition — s 16A(2)(f)(ii) — sentencing judge unable to make finding that offender demonstrated true contrition and remorse over and above that which is evident from pleas themselves — delay — considerable systemic delay occasioned by progress of proceedings through courts, sentencing judge’s personal circumstances and effects of COVID-19 pandemic — matters have been hanging over offender for period of well over 5 years — rehabilitation — s 16A(2)(n) — so far as rehabilitation during period of delay is concerned considering subsequent offending sentencing judge unable to accept offender has rehabilitated themselves — can only assess prospects of rehabilitation as being highly problematic and dependent on becoming drug free and remaining so — sentence — imposed 3 years’ and 4 months imprisonment, offender immediately released on recognisance release order — s 6AAA — sentencing judge would have imposed sentence of 5 years and 6 months imprisonment with 3 year and 8 months non-parole period but for offender’s guilty plea
  • 27 April 2020 —

    R v Dib [2020] NSWDC 145 — drug importation offence — guilty plea — contrition — nature and circumstances of the offence — general deterrence — specific deterrence — mental condition — totality — hardship to the offender — COVID-19 — extra-punishment — rehabilitation — parity

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    sentence — conspiring with others to import commercial quantity of border-controlled drug offence contrary to sections 11.5(1) and 307.1(1) of the Commonwealth Criminal Code — offence relates to 594.43kg of pure MDMA — guilty plea — plea of guilty at first opportunity, with reduction in sentence by 25% appropriate to reflect utilitarian value of the plea and facilitating course of justice — had matter proceeded to trial, would have been very lengthy and required undercover operative to give evidence — contrition — s 16A(2)(f)(ii) — satisfied offender remorseful for actions, as following plea of guilty instructed representatives to enter complex negotiations to settle agreed facts, cooperated with authorities and did not oppose extradition — nature and circumstances of the offence — s 16A(2)(a) —  quantity of MDMA very substantial —  offender stood to obtain significant financial benefit, motivated primarily by desire to pay off debts —  remains aggravating factor offender participated for financial reward — weight given to aggravating factor less than if had been motivated by desire to profit so as to reinvest in further illegal importations — no act of offender that resulted in drugs not being disseminated into community — offence objectively very serious — sentencing judge not satisfied offender had substantial decision-making role — while offender played crucial role in connecting two groups, sentencing judge not satisfied offender indispensable, particularly as conspiracy progressed — general deterrence — s 16A(2)(ja) — condign punishment must be meted out to those who are willing to engage in activities with intention of importing substantial quantities of illegal drugs into Australia — specific deterrence — s 16A(2)(j) — offender has criminal record that includes convictions for serious offences committed as a child — offender’s record disentitles them from leniency for first-time offender or minor record — prior conviction for supplying prohibited drug — mental condition —  s 16A(2)(m) — sentencing judge not satisfied of nexus between offender’s mental health issues and commission of offence such as to reduce moral culpability — mental health issues are relevant to subjective case — penalty will add to offender’s depressed mood and anxiety — offender will require extended period once released to assist in readjusting to life in community and in particular to provide with treatment and supervision in respect of mental health issues — offender has spent most part of adult years in custody — sentencing judge satisfied that if not already institutionalised, offender will be by time eligible for release to parole — totality — significant portion of offender’s time in custody relates to periods where denied parole or bail-refused in respect of murder charge ultimately acquitted of — offender served 5 ½ years uncredited custody — clear position in NSW where offender sentenced in relation to one matter, time spent in custody referable exclusively to successfully appealed unrelated offence is not to be taken into account as form of credit — in light of NSW authorities, difficult to take into account prior uncredited custody served by offender by either backdating commencement date or in applying principle of totality — appreciating difference of approach between jurisdictions, sentencing judge sentenced offender in accordance with principles enunciated by NSW courts — sentencing judge took into account significant period of uncredited custody as part of offender’ subjective case — issue of institutionalisation bears upon assessment of minimum time justice requires offender spend in custody — hardship to the offender —  offender’s periods of incarceration have been onerous and there is no reason to conclude that conditions will not continue in future particularly in respect of curtailed visits — COVID-19 — COVID-19 pandemic made conditions in custody more onerous for offender because measures implanted to control outbreaks have increased offender’s level of stress — primary reason that time in custody is more onerous is very limited contact that offender is allowed to have with family members — extra-curial punishment — offender was detained in Dubai for 5 weeks and tortured on number of occasions — rehabilitation — s 16A(2)(n) — sentencing judge guarded about offender’s prospects of rehabilitation — offender has prior criminal history including at least two serious offences for which they were sentenced to lengthy periods of imprisonment — offence was committed about one year after being released from custody — offender must serve lengthy period in custody having regard to objective gravity of offence — offender’s inevitable institutionalisation and isolation in custody are factors that are less conducive to rehabilitation — parity — due to distinguishing features from co-offender, sentencing judge satisfied starting point of sentence should be significantly higher than 16 years — starting point before 30% reduction is 26 years imprisonment — sentence — imposed 18 years’ and 2 months imprisonment with a 12 year non-parole period  
  • 24 April 2020 —

    Kannis v The Queen [2020] NSWCCA 79 — child exploitation offences — nature and circumstances of the offence — antecedents — mental condition — guilty plea — parity — age — specific deterrence — general deterrence — rehabilitation

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    appeal against sentence — 2 counts of use carriage service to solicit child exploitation material offence contrary to s 474.19(1)(a)(iv) of Commonwealth Criminal Code — use carriage service to groom person under 16 years for sexual activity offence contrary to s 474.27(1) of Commonwealth Criminal Code — additional offence of use of carriage service to menace, harass or cause offence offence contrary to s 474.17(1) of Commonwealth Criminal Code taken into account pursuant to s 16BA — additional state offences — original sentence imposed 2 years’ and 6 months imprisonment with offender released after 15 months’ imprisonment upon entering into recognizance for $1000 and to be of good behaviour for 3 years — nature and circumstances of the offence — s 16A(2)(a) — antecedents — s 16A(2)(m) — mental condition — s 16A(2)(m) — offender 18 years old at time of offences with no prior criminal record however incidents of similar type occurred when he was 14 years old which gave rise to a police warning — sentencing judge found at time of offences offender immature, disturbed and young with a complex history of being bullied at school with consequential psychological harm and with self-destructive features and a pattern of serious depression — mental condition causally linked to offences — original sentencing hearing conducted upon basis overall sentence of fulltime imprisonment was appropriate sentencing outcome in this case — there are some cases where objective gravity of offence means sentence of fulltime imprisonment is inevitable, even allowing for other aspects of case including offender’s subjective circumstances, this case fell into that category — guilty plea — s 16A(2)(g) — sentencing judge allowed 25% discount for guilty plea without any elaboration — this approach was understandable given submissions made in this respect at sentencing hearing where counsel for offender and Crown agreed 25% discount was appropriate for guilty pleas — no uncertainty concerning approach adopted by sentencing judge in determining discounts for pleas of guilty in this case — common approach was adopted by reference to utilitarian value of pleas of guilty, with this approach being applicable to offences in light of common principles — sentencing judge allowed discounts of 25% for utilitarian value of guilty plea — parity — sentencing judge has used as measuring sticks for determination of a sentencing range a series of cases which are materially and significantly different from offender’s case — no explanation given by sentencing judge as to features of these cases which served to furnish a range to be applied to offender’s case — sentencing judge referenced own experience of sentencing for this type of offence with no reference made to any particular case — where limited selection of quite different cases is treated as providing sentencing range without any explanation or elaboration being given as to what features supported that conclusion, it is difficult to see how this had come about without error infecting the sentencing process — re-sentence — age — s 16A(2)(m) — specific deterrence — s 16A(2)(j) — general deterrence — s 16A(2)(ja) — offender’s youth and immaturity are significant factors on sentence and their moral culpability was reduced by the mental condition found to exist on sentence — these aspects also served to reduce significance to e given on sentence to specific and general deterrence — rehabilitation — offender’s prospects of rehabilitation and reduction of their risk of reoffending will be substantially enhanced in the public interest by an extended period of conditional liberty as part of overall sentencing outcome — sentenced to 22 months’ imprisonment with offender to be released after 11 months in accordance with ss 19AC(1) and 20(1)(b) of Commonwealth Criminal Code by way of recognizance release order of $1000 and good behaviour for 3 years
  • 24 April 2020 —

    Soerensen v The Queen [2020] WASCA 114 — importation of porcine semen — manifest excess — totality — course of conduct — victim of the offence — contrition — guilty plea — general deterrence — adequacy of punishment — rehabilitation — offender’s family and dependants

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    appeal against sentence — eight counts of aiding, abetting, counselling or procuring the commission of an offence of importing into Australia porcine semen knowing that thing was an animal, plant or other good offence contrary to s 67(3) of the Quarantine Act 1908 (Cth), obtained or was likely to have obtained a commercial advantage over their competitors or potential competitors offence contrary to s 67(3) of the Quarantine Act 1908 (Cth) and s 11.2(1) of the Commonwealth Criminal Code — original sentence imposed 3 years’ immediate imprisonment, with offender to be released after serving 18 months upon entering into a recognisance of $5,000 to be of good behaviour for a period of 18 months — manifest excess totality — practical effect of totality principle is ordinarily to arrive at a total effective sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual offences — pre-release period of 18 months was unreasonable or plainly unjust — interests of justice (including appropriate punishment and personal and general deterrence) in all circumstances (including overall offending, favourable personal circumstances and antecedents, pleads of guilty and other mitigating factors) did not require offender serve pre-release period of 18 months — pre-release period fixed by sentencing judge was in excess of pre-release period that was reasonably required in order to reflect and give effect to all relevant sentencing factors — course of conduct — s 16A(2)(c) — offender’s criminality was not isolated or opportunistic, it involved planning and premeditation — victim of the offence — ‘victims’ of the offending were potentially members of Australian community who may have been affected adversely if Porcine Reproductive and Respiratory Syndrome had been introduced into Australia — contrition — s 16A(2)(f)(i) — offender prepared personal statement and sentencing judge found statement showed degree of genuine remorse and insight into potential harm to Australian industry — guilty plea — s 16A(2)(g) — plead guilty to all charged offences at early opportunity and after disclosure — sentencing judge found this amounted to acceptance responsibility and willingness to allow justice to take its course — although Crown case against offender was strong, pleas saved time and resources — general deterrence — s 16A(2)(ja) — adequacy of punishment — s 16A(2)(k) — essential to ensure offender adequately punished for offences having regard to objective seriousness of their offending (including role within criminal enterprise) and important sentencing factor of general deterrence with a view to ensuring proper compliance with Australia’s biosecurity laws — rehabilitation — s 16A(2)(n) — appears offender has excellent prospects of rehabilitation and they are most unlikely to reoffend — offender’s family and dependants — s 16A(2)(p) — probably that sentence imposed will have adverse effect on offender’s family as unable to support wife or children financially or emotionally — appears children will be appropriately cared for financially and emotionally by wife — re-sentence — offender released after serving 12 months upon entering into recognisance of $5,000 to be of good behaviour for 24 months
  • 17 April 2020 —

    Khalid v The Queen [2020] NSWCCA 73 — conspiracy preparatory terrorism offence — guilty plea — nature and circumstances of the offence — contrition — general deterrence — specific deterrence — age — character — rehabilitation — hardship to the offender

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    appeal against sentence — conspiring to do acts in preparation for a terrorist act or acts offence contrary to ss 11.5 and 101.6(1) of Commonwealth Criminal Code — original sentence imposed 22 years’ and 6 months imprisonment with a 16 year and 9 month non-parole period — guilty plea — s 16A(2)(g) — sentencing judge erred in not taking into account the utilitarian value of offender’s guilty plea — Xiao error established — 10% utilitarian discount from sentence — re-sentence — nature and circumstances of the offence — s 16A(2)(a) — offence of doing acts in preparation for a terrorist act or acts is an anticipatory offence which enables intervention by law enforcement agencies at much earlier time than commission of a planned offence — in those circumstances, proximity of planned offence, although relevant does not necessarily determine objective seriousness of offence — does not follow from fact that preparatory acts were even in their infancy that offence must be objectively less serious — main focus must be on offender’s conduct and intention at time offence was committed — conspiracy had advanced to the stage of obtaining firearms and ammunition and included consideration of the manner in which to carry out terrorist attacks — fact that conspiracy took place over short period of time did not seem to appeal judge of particular significance in present case, as weapons acquired, possible target considered and meetings occurred between co-conspirators in preparation for terrorist act — planning and preparation not in preliminary stage — contrition — s 16A(2)(f) — appeal judge prepared to accept offender by guilty plea showed some, albeit limited, evidence of contrition and acceptance of responsibility — general deterrence — s 16A(2)(ja) — specific deterrence — s 16A(2)(j) — plainly need for both personal and general deterrence — cases like this nature strike at very heart of fabric of society and threaten democratic government and the security of the State and it is critical that those who would seek to undertake such acts be deterred from doing so and those who may contemplate doing so be made aware that offences warrant severe punishment — age — s 16A(2)(m) — offender at time of offence was 20 years old and still a very young person — having regard to role they played and seriousness of offence, their age is of limited significant however still taken into account — character — s 16A(2)(m) — the fact that the person who committed the offence is otherwise of good character, whilst relevant, does not loom large in the sentencing exercise — rehabilitation — s 16A(2)(n) — prospects of rehabilitation dependent upon offender renouncing extremist views and onus on offender to demonstrate they had done so — sentencing judge’s view that offender’s plea may be taken as some indication of stepping away from their previous views may be fortified to some extent by offender’s good behaviour in custody for period of over 2 years — in absence of evidence from offender of question of whether they have renounced their views, the question of rehabilitation remains uncertain — hardship to the offender — appeal judge taken into account extremely onerous conditions of custody imposed on applicant and the fact that these conditions are likely to continue for foreseeable future — sentence imposed 20 years’ imprisonment with a 15 year non-parole period
  • 17 April 2020 —

    Read v The Queen [2020] WASCA 56 — financial advantage by deception offences — totality — nature and circumstances of the offence — guilty plea — contrition — reparation — co-operation — rehabilitation — character

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    appeal against sentence — 25 counts of obtaining a financial advantage by deception from a Commonwealth entity offence contrary to s 134.2(1) of the Commonwealth Criminal Code, 1 count of attempting to obtain a financial advantage by deception from a Commonwealth entity offence contrary to s 11.1(1) and s 134.2(1) of the Commonwealth Criminal Code — offences relate to obtaining $246,923.29 and attempting to obtain further $4,266 respectively — original sentence imposed 4 years’ imprisonment with a 2 year non-parole period —  totalitynature and circumstances of the offence — s 16A(2)(a) — first limb of totality principle error alleged by offender — where offender relies upon an allegation of implied error, offender must persuade the court that the outcome, having regard to all the circumstances, is unreasonable or plainly unjust — offender abused trust reposed in them as an accountant and tax agent to defraud the revenue of a substantial sum of money over a lengthy period of time — exploited knowledge of taxation system and its weaknesses to obtain money to fund their illicit drug use and gambling — guilty plea — s 16A(2)(g) — contrition — s 16A(2)(f) — reparation — s 16A(2)(f)(i) — co-operation — s 16A(2)(h) — most significant mitigating factors identified by sentencing judge were offender’s early pleas of guilty, which provided significant utilitarian benefit and were genuine expression of remorse, payment of almost full restitution, offender’s disclosure of offending to their employer and their cooperation with ATO investigation — rehabilitation — s 16A(2)(n) — some recognition must also be given to offender’s efforts to rehabilitate themselves — it is to their credit they no longer use illicit substances — character — s 16A(2)(m) — offender’s prior good character has only limited weight — it was by reason of offender’s good character that they were in a position to commit the offences — having considered all relevant circumstances, including those referrable to offender personally and recognising number of significant mitigating circumstances, appeal judges not persuaded that total effective sentence infringed first limb of totality principle — in appeal judges’ views, total effective sentence properly reflected objective seriousness of offending as a whole and strong need to deter others from using their position to exploit the revenue — leave to appeal refused — appeal dismissed
  • 9 April 2020 —

    R v Hughes [2020] NSWDC 98 — obtaining financial advantage offences — nature and circumstances of the offence — antecedents — mental condition — rehabilitation — guilty plea — contrition — general deterrence — specific deterrence — physical condition — COVID-19

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    sentence — attempted by deception to dishonestly obtain a financial advantage from the Commonwealth offence contrary to ss 11.1(1) and 134.2(1) of Commonwealth Criminal Code — did by deception dishonestly obtain a financial advantage from the Commonwealth offence contrary to s 134.2(1) of the Commonwealth Criminal Code — offending related to $99,551 falsely claimed and $26,611 paid — additional 2 counts of attempted by deception to dishonestly obtain a financial advantage from the Commonwealth offences contrary to s 11.1(1) and 134.2(1) of the Commonwealth Criminal Code taken into account pursuant to s 16BA — nature and circumstances of the offence — s 16A(2)(a) — offending conduct involved substantial planning and dishonest conduct including identity theft of half-brother’s details, setting up of false accounts and execution of false BAS return — attempt fell within upper part of low range of objective seriousness — aggravated by offender being on parole — monies used to support lifestyle which offender could not otherwise afford, as in receipt of carer’s pension — sophisticated involving incorporation of corporate entity by which fraudulent BAS statements were facilitated, fell within mid-range and towards bottom of that mid-range — given level of deception, period of offending, amount of the fraud and falsification to ATO representatives, offending was objectively serious — antecedents — s 16A(2)(m) — offences occurred whilst parole for 4 previous obtaining financial advantage by deception offences and 3 previous counts of attempting to commit such offences — offender’s criminal history does not entitle them to leniency in sentencing process — history includes violence, firearms, dishonesty, and obtaining money by deception offences — offender lost father at age 12 and thereafter subject to physical assault by older brother over 4 year — this phase in childhood likely to have adversely impacted upon development of offender’s personality and attitudes — mental condition — s 16A(2)(m) — sentencing judge took into account psychiatric history —instability and unpredictability in mood and behaviour, anti-depressant medication for depressive symptoms and personality traits predisposed offender to defiant attitude towards authority — offender stopped taking anti-depressant medication at time of offending — whilst offender suffered from mood and anxiety symptoms, not extensive or severe enough for diagnosis of psychiatric condition at time of offences — quite likely depressive and anxiety symptoms contributed to impaired judgement at time of offences — rehabilitation — s 16A(2)(n) — prospects for rehabilitation must be guarded given offender’s disavowal of psychological interventions in the past and demonstrated limited insight into offending — guilty plea — s 16A(2)(g) — contrition — s 16A(2)(f) — 10% utilitarian discount in respect of late plea made in fact of strong Crown case — no demonstration of genuine contrition, remorse or acceptance of responsibility for their actions, lack of insight into offending conduct, tendency to minimise that conduct and blame others for it — general deterrence — s 16A2(j)(a) — deterrence important to protect integrity of the revenue and that courts will impose condign punishment for deliberate and sustained fraud — authorities establish tax fraud on Commonwealth revenue of this kind attracts a full-time custodial sentence in the absence of most exceptional circumstances, none of which are present here — specific deterrence — s 16A(2)(j) — offender must understand continuing criminal conduct will attract more severe penalties — in breach of parole reveals continuing attitude of disobedience to the law which warrants a greater emphasis on considerations of retribution, deterrence and the protection of society — physical condition — s 16A(2)(m) — COVID-19 — weight given to illnesses suffered by offender and weight given to considerations concerning COVID-19 virus must be assessed in light of all circumstances of the case and appropriate balance has to be maintained between criminality of offender and their health considerations — COVID-19 pandemic affects whole population, including those in custody — taken into account social visits to correctional centres have been suspended and implications of social isolation will heighten anxiety for those in custody by comparison to implications of social isolation in the community — not satisfied offender at any greater risk than any other person in custody from contracting COVID-19 virus — no medical evidence of extent of illness suffered put before sentencing judge — sentence — sentence imposed 3 years’ and 8 months imprisonment with a 2 year and 6 month non-parole period — reparation order for payment of $26,611.00 of Commonwealth of Australia
  • 3 April 2020 —

    Abbas v The Queen [2020] VSCA 80 — conspiracy preparatory terrorism offence — manifest excess — nature and circumstances of the offence — guilty plea — co-operation

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    appeal against sentence — conspiring to do acts in preparation for or planning a terrorist act offence contrary to s 11.5(1) and 101.6(1) of Commonwealth Criminal Code — 3 other co-offenders — original sentence imposed 24 years’ imprisonment with a 20 year non-parole period — manifest excess nature and circumstances of the offence — s 16A(2)(a) — although offender attributed themselves a dominant role in conspiracy, sentencing judge prepared to accept that save for recruitment of offender’s brother, offender more or less equal participant in offending — sentencing judge of opinion offender an enthusiastic, committed and important member of the conspiracy — no reason to doubt correctness of sentencing judge’s views — objective seriousness of terrorism conspiracy inherently serious — offender planned massacre of innocent, defenceless civilians according to their concept of religious imperatives — balancing objective seriousness of offending against matters relied upon in mitigation, offender’s youth, utilitarian plea of guilty (unaccompanied by any contrition or remorse) and their co-operation with authorities, appeal judges remain unpersuaded that sentence imposed on offender manifestly excessive — if anything, when one looks objectively at horrifying nature of what was contemplated, sheer magnitude of slaughter anticipated by offender in their fanatical zeal, the sentence imposed in appeal judge’s opinion in quite moderate — objective gravity of offender’s crime and their moral culpability for it, were both of an extremely high order — although relative youth, the guilty plea and co-operation needed to (and, in appeal judges’ view did) result in appropriate amelioration of offender’s sentence, in circumstances of this case pre-eminence needed to be given to both general deterrence and community protection — guilty plea — s 16A(2)(g) — offender submitted utilitarian benefit of plea of guilty ought to be given greater emphasis in case of terrorist offence — as general proposition, that cannot be accepted — weight given to plea of guilty and its utilitarian value will fall to be assessed according to particular circumstances of each individual case — in present case, sentencing judge said utilitarian benefit of offender’s plea would lead to reduction in sentence — appeal judges see no reason to doubt sentencing judge affording offender appropriate reduction in sentence for their plea — co-operation — s 16A(2)(h) — appeal judges see no reason to doubt sentencing judge afforded offender adequate reduction in sentence for their co-operation — plain enough offender commenced to provide most relevant information to police only once (as sentencing judge put it) the ‘game was up’, that information being carefully tailored in endeavour to minimise role of co-offenders — leave to appeal against sentence refused
  • 31 March 2020 —

    Zaugg v The Queen [2020] NSWCCA 53 — drug importation — guilty plea

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    appeal against sentence — importing a commercial quantity of a border controlled drug offence contrary to s 307.1 of the Commonwealth Criminal Code — offence relates to 3,509.8g of pure methamphetamine — original sentence imposed 11 years’ imprisonment with a 6 year and 6 month non-parole period — extension of time granted due to finding lesser sentence warranted in accordance with s 6(3) Criminal Appeal Act 1912 (NSW) after consideration of objective seriousness, specific and general deterrence and rehabilitation — guilty plea — s 16A(2)(g) — Xiao error established — discount for utilitarian value should regard principally timing of plea of guilty, which occurred 5 days before scheduled trial date and further delay occurring because of offender’ then desire to seek leave to withdraw plea of guilty — although did not persist with application, more time passed before offender confirmed guilty plea — period of about two weeks would constitute reasonable trial estimate in assessing utilitarian value of offender’s plea — it may be taken that Crown preparing for trial up to period when offender entered plea of guilty in days prior to scheduled trial commencement — guilty plea not demonstrative of contrition or remorse — discount of 10% — but for guilty plea, imprisonment 12 years is appropriate — original sentence quashed — re-sentence — imposed 10 years’ and 9 months imprisonment with a 6 year and 4 month non-parole period
  • 25 March 2020 —

    DPP v Morey [2020] VCC 320 — child exploitation offences — nature and circumstances of the offence — age — rehabilitation — hardship to the offender — guilty plea — contrition

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    sentence — 4 counts of using a carriage service to transmit indecent communication to a person under 16 offence, 1 count of using a carriage service for child exploitation materials offence and 1 count of using a carriage service to procure persons under 16 offence contrary to s 474.26(1) of Commonwealth Criminal Code — additional state and summary charges — nature and circumstances of the offence — s 16A(2)(a) — offending overall objectively very serious, engaged in serious predatory sexual behaviour — targeted multiple victims, young teen girls between 13 and 15 years old, while offending did not result in physical contact nevertheless serious instances of those types of offences — messaging suggested sexual activity, communicated in deeply explicit, pornographic and objectifying manner, made implicit and explicit offers of money in exchange for sexual communication and photos — used multiple accounts to bombard young girls — offending must be seen in context of harassment of witnesses and breach of bail conditions, not to add to seriousness of offending, but offending must be seen as whole to measure objective seriousness — difficult and sometimes unhelpful to simply put label on offending whether “high”, “mid-level” or “low level” as sentencing judge acutely aware of sensitivities of young women who were targets of offending and that such labels may lead to misunderstanding for simple use of single word of shorthand —  age — s 16A(2)(m) — rehabilitation — offender 20 years old at time of offending and 21 years old at time of sentence — offender still young and has a strong, prosocial supportive network available to assist in offender’s rehabilitation and reintegration back into society upon release from prison — hardship to the offender — sentencing judge took into account fact that offender will receive no visits at least for the time being due to COVID-19 — also taken into account that COVID-19 will play on offender’s mind the fact that family and loved ones are isolated from offender and offender faces prospect, as all people in Australia and indeed global community do now, of worrying about health, wellbeing and future of those who may be affected by the virus — should play some part in mitigating sentence — guilty plea — s 16A(2)(g) — contrition — s 16A(2)(f) — early guilty plea has utilitarian benefit as saved number of vulnerable witnesses of tender age being called to give evidence and be cross-examined — remorse and insight only been recently developed — references from mother, grandparents and aunt speak to offender beginning to develop insight and that offender has exhibited remorse, and that plea of guilty facilitates course of justice — sentence — imposed 4 years’ imprisonment with a 2 year and 2 month non-parole period — offender eligible for parole after 2 years to be released on recognisance release order — 6AAA — but for plea of guilty, would have sentenced offender to 5 years’ and 3 months imprisonment with a 3 year and 3 month non-parole period
  • 25 March 2020 —

    Nguyen v The Queen [2020] NSWCCA 45 — drug importation — nature and circumstances of the offence — mental condition — general deterrence — contrition — antecedents — hardship to the offender — rehabilitation

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    appeal against sentence — importing a border controlled precursor offence contrary to s 307.11(1) of the Commonwealth Criminal Code — offence relates to 3.996595kg of pseudoephedrine — original sentence imposed 7 years’ imprisonment with a 3 year and 6 month non-parole period — nature and circumstances of the offence — s 16A(2)(a) — sentencing judge mistook facts by finding offender imported 7.8kg of border controlled precursor pseudoephedrine when it was an agreed fact that offender imported 3.996595kg — this finding was plainly wrong and not open to sentencing judge on the evidence — this erroneous finding, being nearly twice amount imported, must have had impact on sentencing judge’s assessment of objective seriousness of offence but also manner sentencing judge drew guidance from comparable cases — re-sentence — mental condition — s 16A(2)(m) — reduced moral culpability must be taken into account in assessing objective seriousness due to offender’s intellectual disability and it must have significant bearing upon question of appropriate sentence — general deterrence — s 16(2)(ja) — primacy of general deterrence and denunciation in drug importation offending have more marginal significance to determining appropriate term of imprisonment for offenders like offender — offender not appropriate vehicle for full force of general deterrence so need for salutary custodial sentence reduces — contrition — s 16A(2)(f) — position on contrition and remorse complicated by demonstrated lack of intellectual ability and apparent communication difficulties offender has both in English and native Vietnamese — offender’s statements that they regret trusting the people who got them involved and that they had been extremely distressed when discussing offence and court case demonstrate contrition or remorse in an unsophisticated way — antecedents — s 16A(2)(m) — previous offending of very similar nature in 2007 for which offender sentenced to 6 years’ imprisonment with 3 year non-parole period — given release in 2010, almost 6 year hiatus before offender engaged in subject offending — offender did not plan travel to Vietnam with view to partaking in this criminal activity, but rather was cajoled or encouraged to do so once there — offender’s antecedents and character of necessity relevantly include their intellectual deficits — hardship to the offender — clearly has been and will continue to be hardship suffered by offender and their daughter and these are matters to be considered in overall subjective case — offender’s daughter has serious liver condition that has seen her hospitalised on occasions — rehabilitation — s 16A(2)(n) — sentencing judge’s observation, given offender’s prior conviction, that offender’s prospects of rehabilitation cannot be assessed as good is reasonable conclusion — clear offender needs substantial support and direction in community — this has been proven again by subject offending and so lengthy period of supervision in community upon release is essential — appeal judge noted the unusual circumstances of this offender — offender re-sentenced to 6 years’ imprisonment with 3 year non-parole period    
  • 20 March 2020 —

    R v Ali; R v Elayouby; R v Moussa [2020] NSWDC 56 — dealing with money intending to be instrument of crime — guilty plea — contrition — nature and circumstances of the offence — antecedents — general deterrence — specific deterrence — mental condition — rehabilitation — co-operation — offender’s family and dependants

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    sentence — joint commission of one count of dealing with money intending that it would become an instrument of crime offence contrary to ss 11.2A(1) and 400.3(1) of the Commonwealth Criminal Code — offenders involved in money laundering operation with additional co-offenders — offence relates to over $17 million — guilty plea — s 16A(2)(g) — contrition — s 16A(2)(f) — although not pleas at first opportunity, very significant utilitarian value having regard to nature of allegations and estimated length of trials — 20% discount for utilitarian value— while Crown case strong, pleas of guilty also reflect willingness to facilitate course of justice and contrition — nature and circumstances of the offence — s 16A(2)(a) — generally speaking, large number of transaction involving small amounts of money will be more serious than single transaction of large quantity which may be seen as isolated offence — ongoing money laundering business, not an isolated incident — system used not particularly sophisticated and methods utilised to avoid detection somewhat simplistic and amateurish — overall objective gravity falls middle of range of seriousness — offenders occupied lower role in overall enterprise — Co-offender 2 subservient role, followed directions and entirely dispensable — their role least serious of 6 offenders charged and their role falls at lower end of range of seriousness — although motivation to obtain financial benefit, the extent to which this operates as an aggravating factor is significantly moderated having regard to Co-offender 2’s financial circumstances at the relevant time — Co-offender 3’s role slightly more serious than Co-offender 1 as Co-offender 3 gave directions to Co-offender 2 and had some authority to deal with unforeseen circumstances — both Co-offender 1 and 3 motivated by financial reward, neither in type of financial hardship suffered by Co-offender 2, so motivated by financial reward factor adverse to them — Co-offender 1 and 3’s objective seriousness at middle level — antecedents — s 16A(2)(m) — Co-offender 2 came into enterprise following history of abuse, deprivation, isolation and poverty — offender struggling financially and introduced to operation initially not appreciating it was an illegal enterprise — general deterrence — s 16A(2)(ja) — general deterrence, denunciation and punishment are relevant and important considerations — money laundering difficult to detect, investigate and prosecute and incumbent upon courts to impose sentences that deter others from engaging in this type of serious criminal activity — specific deterrence — s 16A(2)(j) — while each offender willingly engaged in sustained criminal activity, weight given moderated having regard to each offender’s prior good character, compliance with bail and not re-offended — at time Co-offender 3 committed present offences, had no prior criminal history— mental condition — s 16A(2)(m) — no direct nexus between Co-offender 3’s mental health issues and offending conduct to reduce moral culpability — Co-offender 3’s mental health issues taken into account in assessing weight given to subjective case and insofar as relevant to conditions under which they will serve term of imprisonment — Co-offender 1’s panic disorder, severe depression, anxiety and concern for son’s health taken into account as time in custody more onerous — rehabilitation — s 16A(2)(n) — Co-offender 3 has good prospects of rehabilitation, committed to their young family and unlikely to engage in criminal activity which would risk further removal from their family in the future — Co-offender 1 good prospects of rehabilitation and unlikely to reoffend — Co-offender 2 has excellent prospects of rehabilitation and is unlikely to reoffend — co-operation — s 16A(2)(h) — Co-offender 3’s type of co-operation with authorities by surrendering items should be recognised in determining sentence as facilitates and promotes cooperation by others — although no person arrested, charged or prosecuted, surrender of items removed from community — assistance warrants 10% reduction — offender’s family and dependants — s 16A(2)(p) — no suitable placement found for Co-offender 2’s child among family or friends — in light of unsettled state of law, in order to substantially modify otherwise appropriate penalty, sentencing judge must be satisfied hardship to offender’s son by reason of offender’s incarceration is exceptional — unique circumstances giving rise to utterly close bond between mother and child forged in difficult circumstances of abusive relationship, estrangement from family, living together in basic accommodation — sentencing judge satisfied gaoling Co-offender 2 and separating them for their son will cause significant emotion and psychological hardship to them and exceptional hardship to their son, who may well be placed in out-of-home care — sentence — Co-offender 1 sentenced to 3 years’ 4 months imprisonment with a 1 year 6 month non-parole period — Co-offender 2 sentenced to 2 years’ imprisonment to be served by way of Intensive Correction Order — Co-offender 3 sentenced to 3 years’ and 7 months imprisonment with a 1 year 9 month non-parole period
  • 18 March 2020 —

    Oliveira v The Queen [2020] WASCA 32 — drug importation offence — nature and circumstances of the offence — guilty plea

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    appeal against sentence — importing a marketable quantity of a border controlled drug offence contrary to s 307.2(1) of the Commonwealth Criminal Code — offence relates to 1.331kg of pure cocaine — original sentence imposed 8 years’ imprisonment with a 5 year and 4 month non-parole period — nature and circumstances of the offence — s 16A(1)(a) — sentencing judge erred in law in sentencing offender on the basis that in considering the severity of the offence and the nature and circumstances of its commission, sentencing judge was required and permitted to take into account ‘the position in which cocaine is regarded in the hierarchy of drugs’ being ‘at the top end of the scale of seriousness in relation to drugs’ — in identifying different commercial quantities of cocaine, heroin and methamphetamine, Parliament has made a judgement as to the seriousness of possession of particular quantities of those border controlled drugs — sentencing judge, by referring to the ‘hierarchy of drugs’ and in viewing cocaine, heroin and methamphetamine to be at ‘the top end of the scale of seriousness in relation to drugs’, has identified a hierarchy which is inconsistent with that provided for by Parliament — sentencing judge applied a judicially-constructed harm-based gradation of penalties which is inconsistent with the structure of div 307 of the Commonwealth Criminal Code — error is material and as it was taken into account by sentencing judge in considering severity of offence, on face of things it appears to have actually affected sentence imposed — re-sentence — guilty plea — s 16A(2)(g) — allowed 25% discount that would have otherwise been imposed — sentence imposed 8 years’ imprisonment with a 5 year non-parole period
  • 13 March 2020 —

    Kao v The Queen [2020] NSWCCA 38 — drug importation offence — guilty plea — nature and circumstances of the offence — hardship to the offender — rehabilitation

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    appeal against sentence — import a commercial quantity of border controlled drug offence contrary to s 307.1 of the Commonwealth Criminal Code — offence relates to over 10kg of pure heroin — original sentence imposed 8 years’ imprisonment with a 5 year non-parole period — guilty plea — s 16A(2)(g) — Xiao error established — 25% discount for utilitarian value of plea of guilty to be allowed on resentence — re-sentence — nature and circumstances of the offence — s 16A(2)(a) — “non-exculpatory” duress was affirmatively accepted by the sentencing judge to have played an important role in the genesis of this offending, and an important role in mitigation of sentence — hardship to the offender — at time of imposition of sentence, offender knew no English — offender’s time in custody would be isolated and difficult for that and other reasons — has been attacked multiple times in prisons — offender slashed themselves, not in suicide attempt, but effort to avoid being incarcerated in particular gaol — offender’s family only been to visit them on one occasion during 5 year incarceration — rehabilitation — s 16A(2)(n) — offender developed limited English during years in custody, has no infringements against prison discipline, worked throughout sentence being highly thought of in number of roles, undertaken many courses in custody in effort at rehabilitation — here, very powerful subjective features including the sorry events that have occurred in custody since imposition fo sentence must be balanced against notably significant quantity of drug sought to be imported, the crucial, long-standing and multi-faceted role played by offender and obvious sophistication of the criminal enterprise — imposed 7 years’ and 6 months imprisonment with a 4 year and 8 month non-parole period — but for guilty plea, head sentence would have been 10 years imprisonment
  • 12 March 2020 —

    R v Glenn [2020] NSWSC 44 — child exploitation offences — nature and circumstances of the offence — contrition — guilty plea — co-operation — specific deterrence — general deterrence — character — rehabilitation

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    sentence — use of carriage service to access child exploitation material offence contrary to s 474.19(1)(a)(i) of the Commonwealth Criminal Code — additional state offence — additional 3 counts of use of carriage service to access child exploitation material offence contrary to s 474.19(1)(a)(i) of the Commonwealth Criminal Code taken into account per s 16BA — nature and circumstances of the offence — s 16A(2)(a) — whilst majority of files depicting child exploitation material fell for classification with Category 1 and 2 of CETS scale, 371 fell within Category 4 and 8 within Category 5 — clear hundreds of children involved in all this material — each offence constituted serious offending, given large number of images and videos involved, nature of the content, and content of conversations — child abuse material classified at Category 1 or 2 on CETS scale held to be capable of possessing significant gravity — discernible from material is great physical and emotional harm must have been occasioned to the children — having regard to nature and content of material, depravity depicted in sexual activity involving children of very young age constituted pernicious offending — offending not isolated, demonstrated some planning, entrenched and protracted pattern of offending — given context of offending, objective seriousness clearly fell within mid-range for the offence and within the middle of that mid-range — contrition — s 16A(2)(f) — guilty plea — s 16A(2)(g) — sentencing judge accepted offender expressed remorse for offending conduct and expressed remorse for impact that has had on their family and relationships — offender’s early guilty plea taken into account, both as expression of offender’s remorse, and giving effect to a utilitarian discount by way of facilitating the course of justice in the face of a strong Crown case — discount for 25% for utilitarian value of their plea, together with offender’s contrition and remorse for offending conduct — co-operation — s 16A(2)(h) — sentencing judge took into account that offender made admissions during the execution of search warrant to investigating officers — specific deterrence — s 16A(2)(j) — specific deterrence taken into account, as offender must understand serious nature of their offending and the need for them to address their criminogenic needs — general deterrence — s 16A(2)(ja) — general deterrence is of paramount importance in sentencing offences involving assessing child exploitation — character — s 16A(2)(m) — offender is otherwise of good character — that is a factor that does not weigh heavily in sentencing process for child abuse material offences — rehabilitation — s 16A(2)(n) — offender commenced rehabilitation by way of counselling and has made some progress in their rehabilitation — while a matter to be taken into account, must be weighed against general deterrence as a paramount consideration, and denunciation for their callous and predatory crimes — sentence — imposed 2 years’ and 8 months imprisonment with a 1 year 8 month non-parole period — recognisance release order imposed to be realised after period of 1 year and 3 months imprisonment
  • 11 March 2020 —

    Bae v The Queen [2020] NSWCCA 35 — drug importation offences — guilty plea — rehabilitation — contrition

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    appeal against sentence — 4 counts of aiding and abetting importation of commercial quantity of drug offence contrary to s 307.1(1) and s 11.2(1) of the Commonwealth Criminal Code — offences relate to 3.713kg pure cocaine, 2.266kg pure methamphetamine, 2.243kg pure methamphetamine, 4.021kg pure cocaine respectively — 1 count of aiding and abetting importation of a marketable quantity of heroin offence contrary to s 307.2(1) and s 11.2(1) of Commonwealth Criminal Code — offence relates to 0.65kg pure heroin — guilty plea — s 16A(2)(g) — Xiao error established — 12.5% discount for utilitarian value for pleas of guilty — subjective circumstances surrounding offender’s unfamiliarity with brief of evidence before current representation and offender’s relatively prompt willingness to plead guilty thereafter, may be reflected in further allowance for their willingness to facilitate the course of justice — this aspect lies as a subjective factor to be taken into account on sentence which ought not be quantified — re-sentence — rehabilitation — s 16A(2)(n) — contrition — s 16A(2)(f)(ii) — no prior criminal convictions — during decade in custody, has been working as a general hand at the Wildlife Centre in a trusted position caring for kangaroos and emus — expressed remorse for offences and had extended opportunity to reflect upon offending and its adverse effects on others, including those using drugs and the shame they brought on their family — offender had limited English skills when came into custody, but has now learned English and is bilingual — offender has good prospects of rehabilitation and low risk of re-offending — sentence imposed 18 years’ and 6 months imprisonment with an 11 year non-parole period
  • 6 March 2020 —

    Oliver v The Queen [2020] NSWCCA 26 — proceeds of crime offence — contrition — delay

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    appeal against sentence — one count of dealing with the proceeds of crime worth $1 million or more contrary to s 400.3(1) of the Commonwealth Criminal Code — original sentence imposed 5 years’ imprisonment with a 3 year non-parole period — contrition — s 16A(f)(ii) — offender demonstrated neither contrition nor remorse and sentencing judge did not err in failing to refer to it, it was not submitted that issue was raised at sentencing proceedings — offender received discount for plea of guilty — fact that sentencing judge did not in terms refer to fact that plea may be evidence of remorse does not amount to error — delay — 4 years and 4 months delay between arrest, charge and sentence — offender on bail throughout that period — no doubt offender suffered from anxiety and depression in anticipation of their sentence — offender submitted delay should have been specifically considered by sentencing judge as mitigating factor and somewhat inconsistency also submitted delay should have been considered in determining offender’s prospects of rehabilitation — offender has not demonstrated period between arrest and sentencing amounted to delay in sense being discussed — it would have been essential, having regard to the state of the evidence about offender’s mental condition and its possible causes, that offender either gave evidence of the intolerable nature of their predicament as they awaited sentence or made it clear to the psychologist that their complaints were at least identifiable in some way related to or caused by delay in the disposition of their case — it did not seem to sentencing judge that onus offender bears has been discharged — appeal dismissed  
  • 6 March 2020 —

    Booth v Thorne [2020] FCA 445 — terrorism offences — interim control order

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    interim control order — s 104.4(1) — preparation for incursion into a foreign country for the purposes of engaging in hostile activities offence contrary to s 11.2A and 119.4(1) of the Commonwealth Criminal Code — original sentence imposed 3 years’ and 10 months imprisonment with a 2 year and 10.5 month non parole period — parole refused — imprisonment expires on 7 March 2020 — ongoing risk of committing, supporting or facilitating terrorist act in Australia or overseas or engagement in a hostile activity in a foreign country by reason of nature and circumstances of offending, continuing inability to accurately identify or assess extremist views and ideologies, continued association with persons of security concern whilst in custody, in view of susceptibility to influence and failure to renounce extremist ideology that led to criminal conviction — nature and circumstances of offending included persistent attempts to travel offshore — offender behaved consistently with avoidance of detection by law enforcement during period of offending — offender demonstrated support for Islamic State and extremist ideology — offender has maintained extremist ideology including resentment towards non-Muslims and Australian laws while in custody — offender continues to have difficulty with identifying or assessing extremist views and ideologies on one hand and legitimate religious practices on the other — offender is susceptible to influence which increases risk that offender may pose to community — offender’s desire to maintain contact with others charged with or convicted of terrorist offences while imprisoned for similar offence increases risk that offender will seek out similar associations of security concern upon release into community and that offender is sympathetic to view/ideology of such persons — real risk that in absence of appropriate controls offender will commit, support or facilitate terrorist act in Australia or overseas or support or facilitate engagement in hostile activity in foreign country — while offender has not professed desire to commit, support or facilitate terrorist act in Australia risk of this is still real one — offender has not renounced extreme ideology — AFP’s experience in recent years is that as more and more Islamic extremists are prevented from travelling to foreign conflict zones, risk of those persons shifting focus to domestic terrorist act increases — no evidence that offender has developed ability to identify or assess extremist views and ideologies and therefore there is risk offender remains susceptible to them — control order to be confirmed, varied, declared void or revoked on 4 June 2020 — if interim control order is confirmed control order is to be in force for 12 months after day on which interim control order is made
  • 3 March 2020 —

    R v Warwick [2020] NSWDC 31 — child exploitation offences — guilty plea — nature and circumstances of the offence — contrition — rehabilitation — general deterrence — mental condition — offender’s family and dependants

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    sentence — 5 counts of making available, transmitting or accessing child abuse material offences contrary to s 474.19(1) of the Commonwealth Criminal Code, 1 count of committing at least three of the offences under s 474.19 to at least two persons offences contrary to s 474.24A(1) of the Commonwealth Criminal Code — additional state offence — guilty plea — s 16A(2)(g) — pleas are early pleas, demonstrate willingness to facilitate course of justice and reflective of remorse — reduction of 25% to each sentence to reflect the pleas — nature and circumstances of the offence — s 16A(2)(a) — offences are of varying objective seriousness — no commercial gain and offender did not create any material — shared or was prepared to share images in various ways — one count of offending is most serious based on period of time, circumstances of continued offending after accounts were closed, number and nature of the images — this offence falls mid-range of objective seriousness — other counts fall below mid-range for offence, with one being an attempt offence — fact that offender viewed child abuse material and derived sexual arousal does reflect some paedophilic tendencies even if not amounting to meeting a psychiatric disorder — offender’s description of comments as ‘light-hearted’ was confronting and reflected some failure to grasp full impact of conduct — sentencing judge accepted offender initially exposed to material through targeted suggestions from other usage, driven by their addictive personality — offender understood what they were doing was clearly wrong and not driven by sexual urges — particularly disturbing offender prepared to make available images that could be accessed beyond like-minded persons —  demonstrated lack of subterfuge and facilitated ready detection however must be assessed against offender’s stated aim of seeking favourable responses and popularity — not a victimless crime — contrition — s 16A(2)(f)(ii) — rehabilitation —  s 16A(2)(n) —  genuine remorse and insight into impact of offending, offender taken full responsibility for conduct and has commenced treatment although not necessarily targeted to root of offending — evidently a sexual deviancy that has not been addressed — although offender aroused by some material they were more driven at time of offending at ascertaining public response to material they disseminated — offender said no compulsion to access child abuse material now that they understood damage caused to victims — prospects of rehabilitation and likelihood of re-offending are positive — general deterrence — s 16A(2)(ja) — general deterrence and denunciation paramount sentencing consideration in offences of child abuse material, committed in private, difficult to detect and are increasingly prevalent — none of offender’s mental health issues lessen significance of general deterrence — mental condition — s 16A(2)(m) — offender’s depression, anxiety, ADHD and issues with addictive conduct serve to only modestly ameliorate moral culpability — accept that conditions in custody may be slightly more onerous because of their mental health issues, however also note apparent resilience as evidenced in witness box — offender’s family and dependants — s 16A(2)(p) — likely impact on family taken into account — wife financially dependent on his income, she may need to return to her birth country for financial reasons if offender unable to support her — real concerns but no greater than often encountered — sentence — imposed 3 years’ and 4 months imprisonment with a 1 year and 9 month non-parole period
  • 28 February 2020 —

    R v Derley; R v Piras [2020] NSWDC 28 — attempted drug importation — nature and circumstances of the offence — guilty plea — antecedents — age — character — contrition — rehabilitation — specific deterrence — general deterrence

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    sentence — co-offender 1 charged with conspiracy to import a commercial quantity of methamphetamine offence contrary to s 11.5(1) — co-offender 2 charged with aid, abet, counsel or procure the committal of attempted importation of a commercial quantity of methamphetamine offence contrary to ss 307.1(1) and 11.1(1) of Commonwealth Criminal Code — offences relate to 249.1kg of pure methamphetamine — nature and circumstances of the offence — s 16A(2)(a) — Court must consider actual activities of offenders  involved in drug importation in assessing their criminal culpability rather than categorising offender’s role — co-offender 1 was one level in the pyramid above co-offender 2, taking directions or assignments from 3rd conspirator — co-offender 1 characterisation of “low-level manager” but nothing to suggest co-offender 1 had any decision making or similar executive function — co-offender 2 at bottom of pyramid, only initiative to recruit co-offender 1 — co-offender 2 a “worker” or gopher — guilty plea — s 16A(2)(g) — utilitarian value is great as undercover officers did not need to give evidence which enhanced protection of their identities — 25% discount for both offenders’ guilty pleas — antecedents — s 16A(2)(m) — age — s 16A(2)(m) — character — s 16A(2)(m) — co-offender 1 has extensive criminal history which does not aggravate current criminality but means Court cannot grant any leniency for current offending — as co-offender 1 has lengthy experience of serving prison sentences, effect of being taken into custody at age of 64 is not the same as it would be for a man of similar age who has no custodial experience — co-offender 1’s previous addiction played no part in their motivation to participate in current crime — both co-offender 1 and 2 had gambling problem — co-offender 2 has no prior criminal convictions, prior good character and entitled to be dealt with leniently — co-offender 2 depressed by increasing debt and marital strain but secondary to voluntarily acquired gambling addiction — explains offending but does not mitigate it — contrition — s 16A(2)(f)(ii) — rehabilitation — s 16A(2)(n) — co-offender 1 has true remorse and contrition for their crime as aware action damaged relationship with wife, may damage relationship with children and bonding with grandchildren, and aware and regretful of damage actions could have caused to community — previous incarcerations led to co-offender 1’s release from drug and alcohol addictions, so expect this incarceration and consequences will allow co-offender 1 to escape gambling addition — concern for disabled wife appears genuine — do not see co-offender 1 as being further threat to society, at risk of further offending or exposing themselves to risk of being locked up in gaol — prospect of not re-offending, prospect of rehabilitation, is very good — co-offender 2’s statements together with what offender is doing to rehabilitate themselves, assisting others, indicates true victim empathy, real contrition and real remorse — prospect for co-offender 2’s rehabilitation are excellent — specific deterrence — s 16A(2)(j) — general deterrence — s 16A(2)(ja) — specific deterrence not an issue, but general deterrence remains — community must know those who seek to import large quantities of illegal drugs will suffer punishment — sentence — sentence imposed 9 years imprisonment with a 6 year non-parole period on co-offender 1 — but for guilty plea, would have imposed 12 years imprisonment — sentence imposed 3 years and 9 months imprisonment with a 2 year and 6 month non-parole period imposed on co-offender 2 — but for guilty plea, would have imposed 5 years imprisonment
  • 27 February 2020 —

    R v Grey (No 3) [2020] ACTSC 43 — domestic sex trafficking of children — nature and circumstances of the offence — general deterrence — guilty plea — antecedents — contrition

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    sentence — organised or facilitated the domestic transportation of a person under the age of 18 intending that they would be used to provide sexual services during or following transportation offence contrary to s 271.7 of the Commonwealth Criminal Code — additional State sex offences — nature and circumstances of the offence — s 16A(2)(a) — factors relevant to the assessment of the objective seriousness of the offence include victim’s age of 17 years, at upper end of age range — no physical force or threats made by offender — offender 49 years old at time of offending — age difference may inform offender’s degree of culpability — substantial age difference means offender has greater authority and maturity, so should exercise greater responsibility — in all 5 jurisdictions visited by offender and victim, conduct was an offence — offender knew victim was child who could not legally provide sexual services, telling victim to not disclose their correct age to clients — offender aware victim vulnerable to their influence, due to age, estranged from their parents, struggling financially and ambition to become a model — offence not planned but took advantage of opportunity, not part of large-scale human trafficking operation — offending continued for 2 months and involved many episodes of transportation across Australia — offender facilitated and personally delivered the transportation, occurring in context of many sexual services provided between episodes of transportation — offender motivated by financial gain — purpose of transportation was victim’s body to be used for sexual intercourse, a very serious “use or display” of their body within definition of “sexual service” — although victim not forced to travel and not financially dependent on the offender, circumstances made victim emotionally reliant on offender such that they felt “trapped” when offender refused to make immediate arrangements for victim to return to Canberra — while lack of consent would be an aggravating feature, victim’s consent to the transportation is not mitigating as person under 18 years is not capable of agreeing to transportation for purpose of providing sexual services — general deterrence — s 16A(2)(ja) — “apparent rarity” of offending does not mean limited need for general deterrence — offences of this type may be difficult to detect and prosecute — as with almost any offence involving exploitation of children, general deterrence is an important sentencing consideration — guilty plea — s 16A(2)(g) — sentencing judge accepted plea of guilty was relatively early — sentencing judge found not necessary to decide whether utilitarian value rationale or subjective willingness rationale for guilty plea as in the present case the plea of guilty had significant value, whether viewed objectively or subjectively, such that the two approaches result in the same outcome — 20% discount for guilty plea as it demonstrated a willingness to avoid proceedings that would have been lengthy and unpleasant — antecedents — s 16A(2)(m) — while relevant, subjective features advanced by the offender are not particularly strong — they do not demonstrate any long-standing social disadvantage or psychological problem that mitigates offender’s moral culpability or commands compassion — subjective circumstances provide no explanation for offences — contrition — s 16A(2)(f)(ii) — without qualification, offender accepted responsibility and demonstrated contrition and remorse — sentence — total sentence imposed 11 years’ and 5 months imprisonment with a 6 year and 3 month non-parole period
  • 27 February 2020 —

    Booth v Naizmand [2020] FCA 244 — terrorism offences — interim control order

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    interim control order — s 104.4(1) — 5 counts of contravening a control order offence contrary to s 104.27 of the Commonwealth Criminal Code — offences related to accessing electronic media — original sentence imposed 4 years’ imprisonment with a 3 year non-parole period  —  parole refused —  sentence expired on 28 February 2020 —  prior to incarceration for contravention offences offender frequently accessed IS and other extremist material supportive of violent jihad on internet including when subject to control order prohibiting them from doing so — offender was a member of close-knit group of individuals who supported ideology and activities of IS and were involved in commission of terrorism offences — offender associated or communicated with others who adhered to same ideology — during incarceration offender maintained frequent contact with associates including family members who hold extremist views, have been convicted of terrorism offences or have links to other extremists — during incarceration offender asserted Sharia law should be law of Australia and considers Islam superior to other ways of life — offender shown inconsistent approach to engaging with PRISM program designed to redirect offenders away from extremism and help them transition out of custody — in view of offender’s impending release from custody there is real risk that in absence of appropriate controls they will take steps to support ideology of IS which may possibly include terrorist attacks being carried out by its members, access and view IS propaganda, engage with members of Appleby Group — obligations prohibitions and restrictions in control orders will ensure offender is provided with opportunity to engage positively with community, is capable of being monitored by police during reengagement with community and is prohibited from engaging in behaviours and being exposed to associates and influences which may lead them to commit provide support for or facilitate a terrorist act or support or facilitate engagement in hostile activity in foreign country — control order to be confirmed, varied, declared void or revoked on 20 April 2020 — if interim control order confirmed, control order is to be in force for 12 months after day on which interim control order is made
  • 21 February 2020 —

    Baden v The Queen [2020] NSWCCA 23 — child exploitation offences — guilty plea — nature and circumstances of the offence

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    appeal against sentence — two counts of procuring a child to engage in sexual activity outside Australia offence contrary to s 272.14(1) of the Commonwealth Criminal Code, one count of engaging in persistent sexual abuse of a child outside Australia offence contrary to s 272.11(1) of the Commonwealth Criminal Code, and one count of engaging in sexual activity (other than sexual intercourse) with a child offence contrary to s 272.9(1) of the Commonwealth Criminal Code — two additional State offences — original sentence imposed 11 years’ and 4 months imprisonment, with a 7 year and 4 month non-parole period — guilty plea — s 16A(2)(g) — pleas entered on first day of the trial — although earlier plea on first day of the trial has some value that may be reflected in discount on any sentence to be imposed, albeit value of such plea reduced, with a discount of 10% usually being allowed— no basis for concluding sentencing judge did not take utilitarian value of pleas into account — discount applied consistent with discounts given for utilitarian value of plea on the first day of a trial — given facilitation of justice brought about by willingness to plead guilty early will in practical terms coincide with utilitarian benefit thereby secured, there is no reason for thinking that 10% discount did not take into account both subjective and objective factors — nature and circumstances of the offence — s 16A(2)(a) — sentencing judge regarded the Commonwealth offences as mid-level representation of offending falling within the offence provision — payment of $26,286.93 to the victim’s mother leads to overwhelming inference that payments served to ingratiate offender within the family generally — requests for money for particular purposes were frequently made at the same time or in close proximity to the ongoing sexual dialogues —payments for the purposes of basic needs, such as medication and education, only serve to highlight the exploitative nature of the conduct and the taking advantage of not only human vulnerability on account of the ages of the children but their economic vulnerability — one of the payments was evidently for a computer with webcam so as to facilitate ongoing interactions and offences — gradual nature of the grooming, lack of physical proximity of children to offender and lack of any physical intercourse by reason of that fact does not assist offender, especially in circumstances where not as though offences constituted offender’s first involvement with unlawful sexual interaction with children — no error in sentencing judge’s assessment of objective seriousness — leave to appeal refused
  • 14 February 2020 —

    Gershuny v The Queen; Ruiz v The Queen [2020] NSWCCA 14 — drug importation offence — guilty plea — parity

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    appeal against sentence — attempting to import a commercial quantity of a border controlled drug offence contrary to ss 11.1 and 307.1 of the Commonwealth Criminal Code — two co-offenders — offence relates to 3.5 kilos of pure cocaine — original sentence imposed 9 years’ and 6 months imprisonment with a 4 year and 10 month non-parole period on both offenders — guilty plea — s 16A(2)(g) — Xiao error — in light of Xiao the approach of sentencing judge can either be characterised as a failure to take into account some material consideration or acting upon a “wrong principle”, namely that pleas for Commonwealth offences are not to be assessed on the basis of their utilitarian value — re-sentence — based on new material which does no more that update material that was before the sentencing judge and given amount of cocaine involved, appeal judge reluctant to impose lower sentence on each offender than was imposed at first instance, which was reasonably lenient — parity — remains issue of parity with sentence imposed by Court on third co-offender previously sentenced — no difference in objective and subjective case of all 3 offenders to warrant any differential treatment — given all 3 are foreign nationals with no local family or community ties, it can be expected that imprisonment is equally burdensome on all of them — if Court were not to intervene and impose same sentence on the two offenders as the third co-offender  then they would be left with a justifiable sense of grievance — appeal upheld — resentenced to 9 years’ imprisonment with a 4 year 6 month non-parole period for both offenders
  • 14 February 2020 —

    DPP v Kwkw [2020] VCC 98 — dealing in proceeds of crime — nature and circumstances of the offence — antecedents — guilty plea — rehabilitation — age — general deterrence

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    sentence — one charge of dealing in proceeds of crime worth $100,000 or more contrary to s 400.4(1) of the Commonwealth Criminal Code — offence relates to $969,825.49 — nature and circumstances of the offence — s 16A(2)(a) — offender involved in scheme for gain — amount of money substantial — offender’s role to realise in part of the funds by purchasing items and cash of significant value which were capable of being moved on by others — offending limited to a few days and use of offender’s own bank account made it inevitable that offender would be apprehended — demonstrates degree of naivety — amount of money involved in this type of offending is significant matter when arriving at appropriate sentence — antecedents — s 16A(2)(m) — offender’s family arrived in Australia with offender and some siblings as refugees, with little more than the clothes on their backs — offender’s family forced to flee Sudan because of the ravages of the war that raged in Sudan — offender regarded as being a young leader respected in their community and in the past had displayed honesty, integrity and kindness to others — money intended to be invested in businesses operated by family members in Sudan — guilty plea — s 16A(2)(g) — offender pleaded guilty at earliest opportunity and offender entitled to benefits that flow from that plea as some evidence of offender’s remorse and utilitarian value — rehabilitation — s 16A(2)(n) — age — s 16A(2)(m) — referees write offending conduct is out of character however nature of offending and offender’s willingness to participate in it when combined with offender’s other “dishonest” offending makes assessment of offender’s prospects for rehabilitation difficult — offender’s youth must make their rehabilitation an important factor when arriving at an appropriate sentence — offender youthful as 21 years old at time of offending and 22 years old at the time of sentence — drug and alcohol abuse in enforced remission whilst in prison however psychologist assessment indicated offender still vulnerable to abuse of those substances — general deterrence — s 16A(2)(ja) — save for giving offender’s youth appropriate weight, nothing to suggest offender not appropriate vehicle for application of general deterrence — general deterrence generally is to be given significant weight — sentence — 3 years imprisonment imposed served by way of recognisance release order in sum of $500 after having served 18 months’ imprisonment — s 6AA declaration — but for offender’s plea of guilty, 5 years imprisonment with a 3 year non-parole period would have been imposed
  • 13 February 2020 —

    R v Dean [2020] NSWDC 11 — use of carriage service offences — nature and circumstances of the offence — antecedents — guilty plea — contrition — rehabilitation — general deterrence — special circumstances

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    sentence — use carriage service to threaten to kill offence contrary to s 474.15(1) of the Commonwealth Criminal Code — 6 additional state offences and 5 related state offences — nature and circumstances of the offence — s 16A(2)(a) — threats to kill made in circumstances of domestic violence following breakdown of a marriage where an Apprehended Violence Order was in place in order to protect the victim — multiple death threats, albeit over a relatively short period — to some extent they escalated in their intensity — antecedents — s 16A(2)(m) — previous criminal convictions include intimidation, assault, contravening Apprehended Domestic Violence Order, destroying or damaging property as well as resisting officers in execution of their duty — offender is a repeat offender of serious offences involving violence — guilty plea — s 16A(2)(g) — 15% discount given for guilty plea for Commonwealth offence — contrition — s 16A(2)(f)(ii) — offender’s guilty pleas are, themselves, some evidence of remorse, although sentencing judge mindful that to make any additional discount for remorse on account of the plea would likely result in undue leniency — remorse is a matter of degree and at least a degree of remorse or contrition has been established notwithstanding sentencing judge’s disquiet that offender has not availed themselves of the opportunity to directly convey it to the Court but has essentially relied upon hearsay accounts from correctional officers — in view of offender’s record involving domestic violence against different partners, sentencing judge had some scepticism as to the sincerity of the expressions of contrition — finding of contrition relevant in mitigating, to a small degree, principles of specific deterrence and elevating, again to a small degree, the principle of rehabilitation — rehabilitation — s 16A(2)(n) — offender attended drug program sessions, studied subjects at TAFE and has certificates of acknowledgement by correctional centre signifying progress in dealing with addictions — upon release could reside with friend and employment as forklift driver — offender’s prospects for rehabilitation are reasonable — prospects for not re-offending are guarded — offender not consumed alcohol since entering custody although previous drug and alcohol counselling did not prevent offender’s previous relapse into heavy drinking and earlier attendance at domestic abuse program did not prevent current offending — general deterrence — s 16A(2)(ja) — principles of general deterrence, protection of the community, denunciation and the importance of making the offender accountable of their conduct must be given primary application ahead of more subject considerations applicable to this offender — special circumstances — sentencing judge held special circumstances applied in this case as offender’s prospects of rehabilitation were at least reasonable and it is desirable to extend the period on parole to promote rehabilitation — total effective sentence imposed 7 years’ 7 months and 2 days imprisonment with a 6 year 6 month and 32 day non-parole period
  • 7 February 2020 —

    R v Jehad Jodeh [2020] NSWDC 18 — taking into account other offences — guilty plea — nature and circumstances of the offence — general deterrence — contrition — rehabilitation — specific deterrence

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    sentence — conspiracy with others to import a commercial quantity of a border controlled precursor, offence contrary to ss 11.5(1) and 307.11(1) of Commonwealth Criminal Code — offences relate to 600 kg to 2500kg of pseudoephedrine — taking into account other offences —dealing in money being reckless as to the risk of the property becoming an instrument of crime offence contrary to s 400.6(2) of the Commonwealth Criminal Code taken into account — guilty plea — s 16A(2)(g) — the plea of guilty saved both cost and time involved in running a trial and reflects significant utilitarian value — demonstrates willingness to facilitate the administration of justice — 25% discount applied — nature and circumstances of the offence — s 16A(2)(a) — offender involved in conspiracy for relatively short period of 6 weeks and ceased involvement voluntarily — motivated at least to some degree by financial reward — willing participant in the conspiracy, playing facilitative role by passing messages about proposed importation — trusted participant by initiators of conspiracy — role at lower end of the scale and culpability significantly lower than that of co-conspirators — although quantity of pseudoephedrine proposed changed over the months from 2500kg to 600kg, on any view of it the quantity involved was very substantial — methodology utilised was not sophisticated, having regard to fact that number of meetings in public — conspiracy in early stages of planning and far removed from implementation stage — sentencing judge taken into account the role of undercover officer in the particular circumstances of case because they played an important role in bringing the conspiracy into existence, making it known to conspirators that they had a “door” to enable importation — never any possibility that pseudoephedrine would be used to manufacture illicit substances resulting in dissemination of drugs into community, although through no positive act of the offender — nature and scope of conspiracy and role of offender limited — offence falls below middle of range of objective seriousness but not lower end as agreement involved importation of substantial quantity of border controlled precursor into Australia — general deterrence — s 16A(2)(ja) — general deterrence, denunciation and punishment are relevant and important considerations in determining appropriate penalty —serious offence involving agreement to import substantial quantity of pseudoephedrine into Australia — must be met with condign punishment that sends message to other potential importers of illicit substances that courts are prepared to proceed by way of lengthy custodial penalties — contrition — s 16A(2)(f)(ii) — offender genuinely remorseful for involvement in these offences — rehabilitation — s 16A(2)(n) — sentencing judge guarded of offender’s prospects of rehabilitation, however not a case where it can be said they have poor or no prospects of rehabilitation — continued support of family, is remorseful for criminal conduct, although did not completely severe ties with criminal associates, offender voluntarily ceased involvement in conspiracy — rehabilitation remains important consideration in this case — specific deterrence — s 16A(2)(j) — weight given to specific deterrence can be moderated to some degree, although remains important consideration in light of offender’s criminal history and haste in which offender become involved in further serious criminal offending upon parole release — moderated because offender demonstrated some maturity and capacity for restraint by voluntarily ceasing involvement in conspiracy — sentence — imposed 6 years imprisonment with a 3 year non-parole period — but for guilty plea, would have imposed 8 years imprisonment
  • 3 February 2020 —

    R v Chie [2020] NSWDC 5 — drug importation — guilty plea — nature and circumstances — parity

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    sentence — attempt to possess a commercial quantity of an unlawfully imported border controlled drug offence contrary to s 307.5(1) of Commonwealth Criminal Code — offence related to 15.4 kilograms of pure cocaine — 3 additional state offences — guilty plea — s 16A(2)(g) — accepted there should be some reduction in otherwise appropriate sentences to reflect utilitarian and any other value of the guilty pleas ultimately entered by offender — while technically guilty plea entered soon after current attempt to possess charge was put before court this was not an early guilty plea — guilty plea came after matter listed for trial but soon after it came to this court — fact of guilty plea must be taken into account, not the state of mind or motivation of offender entering the plea — 15% reduction for utilitarian value — nature and circumstances of the offence — s 16A(2)(a) — parity — problems can emerge in attempting to categorise role of offender in drug enterprise, as in many cases as here the full nature and extent of enterprise unlikely to be known to the Court — general propositions that guide assessments of objective seriousness relevant here include steps taken by offender to access what they believed had been imported, size of importation reflected offender’s awareness a warehouse was required and 2 containers involved, inference offender would receive reward commensurate with risk they took, no evidence motivation was other than for profit, efforts offender made to avoid detection, awareness as a drug user and supplier of the social consequences that follow from distribution of drug they sought to gain possession of — while act of attempted possession can be attended by wide range of moral culpability, here offender’s involvement in overall transaction and degree of involvement in enterprise places them below co-offender and overseas associates but cannot put offender in the day labourer category urged on sentencing judge by the defence —  sentence imposed 11 years’ and 5 months imprisonment with a 7 year non-parole period
  • 22 January 2020 —

    Booth v Kaya [2020] FCA 25 — interim control order application — pre-conditions — offence relating to terrorism

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    interim control order application — preparation for incursion into a foreign country for the purpose of engaging in hostile activities offence contrary to ss 11,2A and 119.4(1) of the Commonwealth Criminal Code — original sentence imposed 3 years’ and 8 months imprisonment with a 2 year and 9 month non-parole period — pre-conditions — 4 pre-conditions before interim control order can be made — first condition requires that senior AFP member has requested interim control order in accordance with s 104.3 of Commonwealth Criminal Code, plainly satisfied — second condition is that Court has received and considered such further information (if any)as Court requires, not applicable to this application as Court did not require further information — third pre-condition is subject of offender’s opposition to making of interim control order — fourth pre-condition are relevant matters Court must have regard to in determining whether obligations imposed on offender are reasonably necessary, reasonably appropriate and adapted to the relevant purpose — offence relating to terrorism — in judge’s opinion it would be anomalous to construe s 104.1 of Commonwealth Criminal Code as requiring in the case of conviction in Australia for contravention of s 119.4 of Commonwealth Criminal Code anything more than proof of conviction — question is whether the offence for which offender convicted may properly be characterised as offence relating to terrorism — relevant offender was demonstrably offence relating to terrorism, as offence involved conduct in Australia that was preparatory to the commission of an offence against s 119.1 of Commonwealth Criminal Code, namely entering a foreign country with the intention to engaging in hostile activity — if offence for which offender has been convicted is as here an offence which by definition involves hostile activity of the kind in which the offender was engaged and which falls within definition of s 117.1 of Commonwealth Criminal Code, it is properly characterised as an offence relating to terrorism — in such circumstances, both unnecessary and undesirable to in effect go behind conviction and consider conduct underlying the conviction for purpose of charactering the offence as one related to terrorism or not — interim control order imposed pursuant to s 104.4 of the Commonwealth Criminal Code
  • 24 December 2019 —

    Merhi v The Queen [2019] NSWCCA 322 — bribery of public official, importation of tobacco and proceeds of crime offences — nature and circumstances of the offence — character — guilty plea — hardship to the offender — specific deterrence — general deterrence

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    appeal against sentence — bribery of a public official offence contrary to s 141.1(1) of Commonwealth Criminal Code, aid and abet the importation of tobacco products knowing of an intent to defraud the revenue offence contrary to s 11.2(1) of Commonwealth Criminal Code and s 233BABAD(1) of Customs Act 1901 (Cth), dealing in proceeds of a crime greater than $100,000 offence contrary to s 400.4(1) of Commonwealth Criminal Code — original sentence imposed 5 years’ and 6 months imprisonment with a 3 year and 3 month non-parole period — nature and circumstance of the offence — s 16A(2)(a) — no principle or precedent which limits finding of breach of trust to offences which happen during period when offender is employed in position of trust or authority — clear offender used information and knowledge gained whilst employed at Australian Border Force as part of process in working with co-offender as well as associates of syndicate to ensure illegal importation went undetected — important that not only current employees but also former employees can be trusted with information gained through their employment — bearing in mind ongoing obligations of confidentiality ordinarily imposed upon persons in position of authority and trust even after employment ceases, it might be surprising if misuse of such confidential information for criminal purposes after cessation of employment did not involve abuse of trust such as to constitute an aggravating factor — character — s 16A(2)(m) — sentencing judge took into account general deterrence as significant factor and had regard to offender’s breach of trust as aggravating factor — in then reducing significance of prior good character based on the same factor, sentencing judge may have erred in considering that a mitigating factor, which would otherwise be available under s 16A(2)(m) should be given little weight — in some circumstances good character should be given less weight, particularly if offender used good character to gain position of trust so as to enable offence to be committed — different situation arises where offender has not obtained position of trust with specific purpose of committing offence and demonstrated prior good character over long period of time whilst so employed — to not have regard to offender’s prior good character may be viewed as form of double-counting — re-sentence — guilty plea — s 16A(2)(g) — offender entitled to 25% discount for utilitarian value of plea of guilty — hardship to the offender — likelihood that experience in prison will be more onerous because of their former employment — specific deterrence general deterrence — specific deterrence of less significance in the context of offending than general deterrence — sentence imposed 4 years’ and 6 months imprisonment with a 2 year and 6 month non-parole period
  • 23 December 2019 —

    Heng v The Queen [2019] NSWCCA 317 — drug importation offence — manifest excess — 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) of Commonwealth Criminal Code — offence relates to 73.8kg of pure methylamphetamine — additional aiding and abetting the manufacture of a commercial quantity of a border controlled drug offence contrary to ss 11.2(1) and 305.3(1) of Commonwealth Criminal Code taken into account pursuant to s 16BA — original sentence imposed 23 years’ and 9 months imprisonment with a 15 year and 9 month non-parole period — manifest excess guilty plea— s 16A(2)(g) — sentencing judge not obliged to state quantum of guilty plea discount and absence of judge doing so did not constitute error — offender submitted fact offence committed whilst on conditional liberty relating to earlier drug offence should have had less impact on setting of sentence than might otherwise be the case because result of further offending was that offender served a year of earlier sentence in custody when they would otherwise have been on parole — this does not mean commission of subject offence whilst on parole not aggravating feature — matters that supported substantial sentence imposed included significant weight of drug and considerably significant wholesale and street value, offender’s knowledge of large quantity of drugs involved, directing of and crucial role in criminal enterprise, profit motive, involvement in significant planning and organisation of enterprise and offender’s subjective circumstances did not provide significant assistance to offender — neither review of sentence imposed in other cases nor any other matter indicates manifest excess — application of extension of time granted — leave to appeal against sentence granted — appeal against sentence dismissed
  • 23 December 2019 —

    R v Lelikan [2019] NSWCCA 316 — membership of terrorist organisation offence — nature and circumstances of the offence — general deterrence

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    appeal against sentence — membership of a terrorist organisation offence contrary to s 102.3(1) of the Commonwealth Criminal Code — offence relates to organisation Partiya Karkerên Kurdistanê (PKK), at the time a proscribed terrorist organisation within the definition of terrorist organisation in s 102.1 of Commonwealth Criminal Code — original sentence imposed a 3 year community correction order — nature and circumstances of the offence — s 16A(2)(a) — in determining objective seriousness of offence, Benbrika’s “history of organisation is relevant because it informs nature of organisation” may be accepted, but does not follow that consideration extends to merits of organisation’s objectives — no authority in this country to support contrary proposition that Court can assess merits of political ideology of organisation in assessing objective seriousness of offence — legislation does not draw any distinction between terrorist organisations by reference to merits of organisations — to take merits of terrorist organisation into account essentially would involve consideration of ideology of organisation which is matter for legislature in considering whether to declare the organisation a terrorist organisation — not to say history and objectives of organisation cannot be taken into account, as nature of organisation’s past activities and potential future activities relevant to determination of objective seriousness of offence of membership of terrorist organisation — relevant that activities of PKK taken place in relatively confined geographical location and not present direct threat to Australia — relevant that PKK neither advocates nor engages in indiscriminate killing of civilians — however extent to which objective seriousness is lessened by this factor is doubtful — fact that limited class of persons targeted does not mean terrorist acts are not serious — not relevant to objective seriousness that PKK made commitments to international law — more relevant to look at what PKK has done and is proposing — fact that PKK does not recruit children, engage in sexual violence or uses landmines lessens seriousness of joining organisation compared to one that does, but fact remains soldiers, government officials and citizens killed as result of their activities — fact that PKK is well-organised and resourced organisation which has shown intention and capacity to carry out terrorist acts is relevant to objective seriousness — no doubt offender joined organisation and maintained membership with full knowledge of its objectives and methods — moral culpability greater than person who joined with little knowledge of aims and methods — length of time offender remained member and extent of involvement is relevant to assessment of moral culpability — offender’s belief in rightness of the cause does not of itself affect their moral culpability — however fact offender joined as a result of cruel treatment received at hands of Turkish authorities in offender’s youth mitigates that culpability — although sentencing judge stated in effect they could not go behind the listing of the organisation as a terrorist organisation, sentencing judge at least implicitly took into account the “underlying merits” of the PKK cause compared to that of other terrorist organisations — although comparison of acts carried out by PKK compared with those of jihadist organisations were undoubtedly relevant, the fact that underlying ideology may be seen to be more compatible with democratic values does not lessen impact of terrorist acts or their seriousness — irrelevant that classification of PKK as terrorist organisation is contentious — general deterrence — s 16A(2)(ja) — the importance of general deterrence in dealing with offences of this nature needs to be taken into account — sentence — in the exercise of residual discretion, appeal judge did not interfere with the sentence as Director accepted offence middle to low range of seriousness, incorrect conceded consideration of international humanitarian law, Crown stated sentencing judge could look at “nature and quality of organisation”, case conducted on basis whole of evidence before sentencing judge was relevant which was different position to that taken by Director on appeal, and offender been at liberty since charged and has done nothing to suggest sentencing judge’s assessment of character was incorrect and complied with community corrections order
  • 19 December 2019 —

    Booth v Namoa [2019] FCA 2213 — terrorism offences — interim control order

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    interim control order — s 104.4(1) — conspiring to do acts in preparation for, or planning, a terrorist act contrary to sections 11.5(1) and 101.6(1) of the Commonwealth Criminal Code — sentence imposed 3 years’ and 9 months imprisonment with a 2 year and 10 month non-parole period — parole not granted — sentence expired on 22 December 2019 — offender in agreement with and expressly supported co-offender’s intention to carry out terrorist attack — sentencing judge found offender drawn into previous Salafi jihadism beliefs at superficial and emotional level because doctrine gave a sense of belonging to something as well as sense of purpose and channel for expression of aggressive feelings — sentencing judge made allowances for offenders youth that allowed offender to be seduced by ideology promoted by propaganda — sentencing judge found causal effect of offender’s mental disturbances made it inappropriate to penalise at level that otherwise might have been called for by way of deterrent to others — still real and reasonable risk offender remains person about whom it is not possible conclusively to say that they are not at risk of relapsing to, or actually maintaining, offending behaviours that led to conviction although there are many positive indications that they have abandoned those behaviours — it is not always possible objectively to ascertain whether subsequent renunciation is genuine or even if genuine one that person can maintain because of personality traits, education and psychological conditions that led to initial adoption of those toxic beliefs — making of control order requires Court to engage in process of evaluating through balancing exercise that Div 104 of Code prescribes what obligations prohibitions and restrictions ought to be imposed on person having regard to what is reasonably necessary reasonably appropriate and adapted for purposes of protecting public from terrorist attack or preventing provision of support for or facilitation of terrorist act — object of Parliament is paramount consideration in evaluating terms and provisions of interim control order — each of proposed obligations prohibitions and restrictions in final version of proposed interim control order imposes on offender no more than is reasonably necessary, reasonably appropriate and adapted for purpose of paramount consideration of protecting public from terrorist act and preventing provision of support for or facilitation of terrorist act — proposed orders are also reasonably necessary reasonably appropriate and adapted to minimise, consistently with object of rehabilitation of offender, impact of controls on financial and personal circumstances — control order to be confirmed, varied declared void or revoked on 3 February 2020 — if interim control order is confirmed control order is to be in force for 12 months after day on which interim control order is made
  • 18 December 2019 —

    R v Pender [2019] NSWSC 1814 — preparatory terrorist offence — mental condition — guilty plea — general deterrence — rehabilitation — nature and circumstances of the offence

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    sentence — intentionally possess a knife in connection with the preparation for a terrorist act offence contrary to s 101.4(1) of Commonwealth Criminal Code — additional state offences — mental condition — s 16A(2)(m) — auditory hallucinations including commands to kill reported by offender at time of arrest and continues to be diagnosed with characteristics such as disinhibition and impulsivity — offender was not in a florid psychotic state, but mental illnesses lie on continuum of varying degrees of seriousness: it would be churlish in the circumstances of this case to conclude that offender’s criminal acts were committed by someone with unfettered powers of self-control, logic and rationality — sentencing judge rejected proposition that can only take mental illness into account when sentencing if suitably qualified medical specialist has said in terms that offending was caused by the mental illness, or that it was a contributing factor — abundant evidence from which sentencing judge considered it legitimate to infer offender’s mental illness contributed to offending conduct — guilty plea — s 16A(2)(g) — pleas offered at very last opportunity — entitled to 8% discount on sentence for the utilitarian value of pleas — general deterrence — s 16A(2)(ja) — significance of general deterrence necessarily recedes as although offender did not technically have defence of mental illness available to them, in the sense that they did not understand the nature and quality of their acts or that they were wrong, little doubt offender’s conduct associated with condition of schizophrenia or schizoaffective disorder and prone to disinhibited and impulsive behaviour and psychomotor agitation — rehabilitation — s 16A(2)(n) — offender has prominent facial tattoo apparently inspired by the Christian religion, converted to and renounced Islam twice and now wishes to embrace the Jewish religion — sentencing judge impression that offender’s adherence to Islam questionable in the past but non-existent at the present — offender’s plainly offensive and violent religious pronouncements are more a function of a state of confused suggestibility than of any genuine or devout adherence to misguided fundamentalism — also difficult to separate these things from the ever present spectre of offender’s mental illness — offender’s prospects of rehabilitation and the associated question of the likelihood of reoffending are more reliably informed by their mental health and criminal history than particular circumstances or details of conduct for which to be sentenced — offender’s history of violence and aggression is of long standing and conspicuously pre-dates by many years the emergence of any obvious or suggestion attraction to or adoption of hysterical extremes of radical Islam — offender’s so-called Islamic rhetoric was manifestation of propensity for violence rather than violence being expression of entrenched or enduring religious fanaticism —prospect of offender committing further similar offences quite limited, but less optimistic about general ability to overcome difficulties with impulsive and violent behaviour having regard to offender’s indifferent criminal history and mental health — nature and circumstances of the offence — s 16A(2)(a) — having regard to wide scope of activity contemplated by s 101.4(1), offending lies towards the lower end of the range of objective seriousness — seriousness of the charge must not be mistaken for the seriousness of the breach — critically important in sentencing, when possible and appropriate to do so, to discriminate between individuals who would wish harm upon the Australian community and those whose words and actions are in all probability and to a significant extent the product of a disordered mind — sentence — imposed 3 years’ and 3 months imprisonment with a 3 year non-parole period with a balance of term of 1 year
  • 17 December 2019 —

    R v Khayat; R v Khayat (No 14) [2019] NSWSC 1817 — conspiracy preparatory terrorism offence — nature and circumstances of the offence — objective seriousness — injury, loss or damage — co-operation — antecedents — deportation — taking into account other offences — rehabilitation

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    sentence — conspiring with each other and others to do acts in preparation for, or planning, a terrorist act (or acts) offence contrary to s 11.5(1) and 101.6(1) of Commonwealth Criminal Code — relevant terrorist acts involved the use of improvised explosive device and/or improvised chemical dispersal device — nature and circumstances of the offence — s 16A(2)(a) — although Co-offender 1 communicated with conspirators overseas about the subject matters of the conspiracy and received instructions from them as to various acts, Co-offender 2 also played important role as English language skills and technological ability were superior to Co-offender 1’s, making Co-offender 2 able to perform important tasks — Co-offender 1 more culpable than Co-offender 2 because involvement, measured by time spent, amount of communication with overseas conspirators and nature and extent of tasks performed was greater — objective seriousness — that no one suffered physical injury or killed as a result of this conspiracy does not make it anything other than extremely serious — the conspiracy plainly envisaged that a large number of people would be killed — scale of intended impact adds significantly to gravity of offence — both offenders played a highly significant role in Australia, taking delivery of the bomb and doing what was asked of them — although offenders did not initiate conspiracy, they carried out instructions to advance its purposes in Australia — objective seriousness of offence very high for each offender — co-operation — s 16A(2)(h) — Co-offender 1’s volunteered details in police interviews were “valuable” — while co-operation motivated by hope they would be treated more leniently as consequence, offender’s self-interested motive does not undermine utility of co-operation — Co-offender 2’s police interview answers were strategic and it became apparent they were dissembling to try to save themselves — no co-operation taken into account in Co-offender 2’s favour apart from co-operation in conduct of the trials — efficient conduct by offenders’ legal representation and substantial admissions enabled Crown to put its case in clear and efficient manner — both offenders entitled to have co-operation during the trial taken into account in their favour — antecedents — s 16A(2)(m) — Co-offender 1’s age of 52 and ill-health are matters to be taken into account since they might die in gaol and if they survive, will have a shorter time after their release  — deportation — both offenders have been convicted and sentenced for life by a military court in Lebanon for this offence — sentencing judge bound by decisions of the Court of Criminal Appeal to the effect that, at least in cases such as the present, the prospect of deportation is irrelevant to the sentencing discretion including for Commonwealth offences — even if it were relevant, not clear what difference it would make to the sentence — taking into account other offences — s 16A(2)(b) — sentencing judge did not accept submission that provisions in Crimes Act which require sentencing judges to take into account other sentences apply to sentences imposed by foreign courts in absentia, particularly where prospect that offender will be deported to jurisdiction where foreign sentence imposed depends on executive act in local jurisdiction — rehabilitation — s 16A(2)(n) — Co-offender 1 will probably be loath to jeopardise benefits of family life and liberty in Australia by entering into conspiracy upon his eventual release — Co-offender 2 has come to know of dire consequences of becoming involved in terrorist crime — each offender has some prospects of rehabilitation — sentence — sentence imposed 40 years’ imprisonment with a 30 year non-parole period for Co-offender 1 and imposed 36 years’ imprisonment with a 27 year non-parole period for Co-offender 2
  • 17 December 2019 —

    DPP (Cth) v Toy [2019] VCC 2112 — child exploitation offences — nature and circumstances of the offence — antecedents — guilty plea — contrition — rehabilitation

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    sentence — one count of procuring a person under 16 years of age for sexual activity using a carriage service and one count of using a carriage service to solicit child exploitation materials offence contrary to s 474.19(1) of Commonwealth Criminal Code nature and circumstances of the offence — s 16A(2)(a) — offender did not use threats or intimidation and used their own name — following arrest police found no child exploitation materials in offender’s possession or electronically stored — whilst not mitigating factors, they support that offending conduct not only of offender’s antisocial personality traits but also of being heavily stimulated by use of methamphetamine — lack of escalation in conduct — while offending not in the worst category of these offences “it is bad enough” — antecedents — s 16A(2)(m) — sentencing judge conscious that lack of nurturing, abuse and general disadvantage offender suffered in their childhood in an enduring factor — offender has effectively developed antisocial personality traits in response to dysfunctional upbringing, which have become entrenched with habitual substance abuse, long-term unemployment and homelessness, and a general lack of direction and motivation in their life — guilty plea — s 16A(2)(g) — contrition — s 16A(2)(f)(ii) — plead guilty at the earliest opportunity — although offender does not have sophisticated insight, sentencing judge accepted demonstration of some remorse not only by early pleas of guilty but offender’s acknowledgement of the wrong of such sexual interactions with underage females, the harm it can do, and the considerable shame the offender feels by having entered this category of criminal offending — rehabilitation — s 16A(2)(n) — offender has shown reluctance to engage in any substance abuse treatment or rehabilitation, so it is noteworthy that offender was prepared to attend drug education courses as well as educational programs — offender not previously committed offences involving child exploitation, but lengthy criminal history and failure to engage in community-based sentencing dispositions rehabilitation, entrenched substance abuse and antisocial personality traits cause sentencing judge to be guarded about offender’s prospects of rehabilitation — sentence — given offender’s long history of non-compliance with Court orders and significant personality, psychological and substance abuse issues and total lack of support in the community, a recognisance release order would be setting the offender up to fail — sentence imposed 37 months’ imprisonment with a 18 month non-parole period — s 6AAA — if not for plea of guilty, sentence imposed would have been 4 years and 6 months’ imprisonment with a 3 year non-parole period
  • 12 December 2019 —

    ZZ v The Queen [2019] NSWCCA 286 — drug importation — co-operation

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    appeal against sentence — importing a marketable quantity of a border controlled drug offence contrary to s 307.2(1) of the Commonwealth Criminal Code — offending relates to 824.4g of pure cocaine — original sentence imposed 5 years’ imprisonment with a 3 year and 2 month non-parole period — co-operation — s 16A(2)(h) — sentencing judge did not accept offender provided ‘any useful information’ to authorities, no further reduction to sentence for assistance was given —  it is accepted that offender was not entirely forthcoming with arresting officers as to details of recruitment process and matters relevant to the recruiter — however, no dispute offender provided considerably more detail in interview with German police and prosecuting officials — at time of sentencing, no basis upon which the information could have been assessed as no assessment had been made by German authorities, it was not even known if details offender gave about recruiter were true — they are now known to be true — offender has been shown to be entitled to a reduction of sentence on account of their co-operation with law enforcement authorities in their interview, even in circumstances where value of co-operation was not appreciated until after offender sentenced — re-sentence — appeal judge satisfied in context of statutory guidepost of 25 years imprisonment as maximum penalty for offence, sentence of 6 years’ and 8 months as starting point (same as sentencing judge) is an appropriate sentence — sentence reduced by 35% on account of offender’s guilty plea, remorse, and co-operation with law enforcement agencies — original sentence quashed — offender resentenced 4 years’ and 4 months imprisonment with a 2 year and 9 month non-parole period
  • 29 November 2019 —

    The Queen v Abbas, Chaarani & Mohamed [2019] VSC 775 — conspiracy preparatory terrorism offence — nature and circumstances of the offence — parity — guilty plea — rehabilitation — contrition — totality

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    sentence — conspiring to do acts in preparation for or planning a terrorist act offence contrary to ss 11.5(1) and 101.6(1) of Commonwealth Criminal Code — 3 co-offenders — nature and circumstances of the offence — s 16A(2)(a) — Co-offender 1 joined conspiracy comparatively late — during 3 weeks of involvement, not as active as Co-offenders 2 or 3, but still involved in 3 significant events of the testing of an IED, accompanying co-offenders for purchasing of hydrogen peroxide which could be used to make TATP and accompanying co-offenders for reconnaissance of possible location for imminent terrorist attack — Co-offenders 2 and 3 active players in conspiracy over entire 2 month period — upper range example of objective seriousness for several reasons — preparatory acts were done in contemplation of mass slaughter to occur in heart of Melbourne at time of particular significance to many Australians, Christmastime — Co-offender 1 will receive lesser sentence than co-conspirators because of lesser role in conspiracy, only actively involved for a couple of days of the last 3 weeks of the conspiracy and contribution to preparations and planning for a terrorist act was of limited significance, but not insignificant or fleeting — given nature of this conspiracy, Co-offender 1’s offending also an upper range example of the offence — parity guilty plea — s 16A(2)(g) — rehabilitation — s 16A(2)(n) — 4th member of conspiracy sentenced separately pleaded guilty and was sentenced to 24 years’ imprisonment with a 20 year non-parole period — Co-offender 1 does not get benefit of significant discount for having pleaded guilty at the earliest reasonable opportunity but Co-offenders 2 and 3 do get benefit of having given evidence at plea hearing publicly renouncing IS and violent jihad and benefit of having finally admitted guilt during testimony — these two developments support a finding in Co-offender 2 and 3’s favour, on the balance of probabilities, that both are genuinely on the path of de-radicalisation — this finding does not entitle offenders to same discount they would have received if they had pleaded guilty at earliest reasonable opportunity — Co-offender 1 has reasonable prospects of rehabilitation — contrition — s 16A(2)(f)(ii) — Co-offenders 2 and 3 have shown contrition and made some reparation for offence by giving evidence and publicly renouncing IS and violent jihad — totality — Co-offenders 2 and 3 currently undergoing sentence for others offences of attempting to engage in a terrorist act and engaging in a terrorist act, with both co-offenders sentenced to 22 years’ imprisonment with a 17 year non-parole period — sentencing judge accepted there should be substantial concurrency having regard to principle of totality and avoiding ‘crushing sentences’, but there must necessarily be cumulation too — current offence much more serious than earlier terrorist offences — sentence — 22 years’ imprisonment imposed on Co-offender 1, with a 16 year and 6 month non-parole period — 26 years’ imprisonment imposed on Co-offenders 2 and 3, with 16 years of those 26 years to be cumulative on existing sentence (total effective sentence of 38 years) with a 28 year and 6 month non-parole period
  • 27 November 2019 —

    Kebriti v The Queen [2019] VSCA 275 — child exploitation offences — manifest excess — nature and circumstances of the offence

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    appeal against sentence — one charge of using a carriage service to procure a person under 16 years of age offence contrary to s 474.26(1) of the Commonwealth Criminal Code and one charge of using a carriage service to transmit indecent communication to a person under 16 years of age offence contrary to s 474.27A(1) of the Commonwealth Criminal Code — original sentence imposed 4 years’ imprisonment with a 2 year and 3 month non-parole period — manifest excess nature and circumstances of the offence — s 16A(2)(a) — no error in sentencing judges’ description of offending in procurement charge as serious example of that offence, or description of offending constituting transmission charge as being mid-range — offender aware almost immediately that they were communicating with young boy — instead of desisting, offender persisted in lengthy conversation to propose oral sex, using highly sexualised language for that purpose — offender went on to arrange a meeting with the boy, leaving no room for doubt offender’s aim was to procure boy to engage in penetrative sex with him — for the purposes of s 474.26(1), the ‘sexual activity’ to which the conduct was directed was at serious end of the scale — criminality constituted by offender’s transmission to a young boy of an explicit image of sexual arousal was quite separate from criminality constituted by conversation in which offender sought to procure T for sex — unnecessary to decide whether presence of ‘actual victim’ is to be regarded as aggravating factor — what matters for present purposes is that 11 year old boy suffered psychologically as a result — not reasonably arguable that sentences imposed by judge were manifestly excessive — application for leave to appeal against sentence refused
  • 22 November 2019 —

    McCartney v Abdirahman-Khalif [2019] FCA 2218 — terrorism offences — interim control order

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    interim control order — s 104.4(1) — acquitted of intentionally a member of a terrorist organisation offence contrary to s 102.2(1) of the Commonwealth Criminal Code — during term of imprisonment offender communicated with persons both in Australia and overseas who are security concern — persons of security concern have made unsolicited contact including for purposes of providing offender an opportunity to marry — extent to which offender was aware of nature of security concerns at time of correspondence is unclear although some evidence that offender was not — offender has not completed any significant rehabilitation programs specifically directed to deradicalization including because they were not provided with any meaningful opportunity to do so when in prison — offender’s past conduct has occurred in circumstances in which they have very poor psychological resistance and they continue to have poor psychological resistance — in all of circumstances it is more probable than not that offender will continue to support ideology intentions and activities of IS including terrorist attacks being carried out by its members and seek out and engage with IS extremists whether members or otherwise including for purposes of pursuing intention to marry IS fighter or terrorist — high likelihood offender will act on intention to marry IS extremist in very short term or will otherwise form relationships in very short term in which they are highly susceptible to influence of others — in context of such relationships, real risk offender will do any act in support of IS cause as may be requested or demanded of them by others including acts of terrorism or conduct supporting or facilitating acts of terrorism — more probably than not that making of interim control order would substantially assist in preventing terrorist attack or in preventing provision of support for or facilitation of terrorist act — offender’s propensity for participating in violent act must be assessed in all of circumstances not only by reference to motivations for travelling to Syria or Turkey or other places in Middle East — absence of expressed desire to personally commit specific act of violence is relevant but must be given less weight in circumstances where there has been express allegiance to leader who has urged upon followers necessity to commit act of violence in order to achieve cause of IS —given less weight in circumstances where material depicting gross acts of violence were consumed and stored over significant period and in significant quantities — offender has an obsession with violence — controls restrict offender’s freedom of movement, association and communication, access to certain materials that is information of specific kind and access to and use of specific articles — controls restrict offender’s means of communication including by hardware devices and software applications that can be used and facilitate ability of police to monitor activities — judge had regard to impact that orders would have on offender as young woman and especially to vulnerable position that offender is in
  • 20 November 2019 —

    R v Pulini; R v Pulini [2019] QCA 258 — human trafficking and forced labour offences — manifest excess

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    appeal against sentence — Counts 1 and 2 of trafficking in persons contrary to s 271.2(1) of the Commonwealth Criminal Code, Counts 3, 4, 5 and 6 of harbouring an unlawful non-citizen contrary to ss 233(2) and 233E(3) of the Migration Act 1958 (Cth), Counts 7 and 8 of causing a person to enter into or remain in forced labour contrary to s 270.6A(1) of the Commonwealth Criminal Code — original sentence imposed 6 years’ imprisonment for Co-offender 1 and 5 years’ imprisonment for Co-offender 2 with a 2 year non-parole period for both offenders — manifest excess — sentencing judge “failed to impose individual sentences in respect of the discrete offending for those lesser charges” but no party supported proposition that error could be corrected on reopening of sentence under s 188 of Penalties and Sentences Act 1992 (Qld) or s 19AHA of Crimes Act (Cth) — appeal judge used approach from R v MAZ — sentencing judge would have imposed 2 year terms for counts 2, 5 and 6 and 3 year terms for counts 3 and 4 — recalling of parties 2 days after sentence was not for purpose of interfering with practical effect of sentence but to correct sentences on counts 2 and 6 — alterations are not material however error being demonstrated, the 2 sentences should be set aside and on counts 2, 5 and 6 a term of imprisonment of 2 years should be substituted and on counts 3 and 4 a term of imprisonment should be substituted — re-sentence — sentence imposed 6 years’ imprisonment for Co-offender 1 and 5 years’ imprisonment for Co-offender 2 with a 2 year non-parole period for both offenders
  • 11 November 2019 —

    Avan v The Queen [2019] VSCA 257 — causing a dangerous article to be carried by a postal or similar service — nature and circumstances of offence — mental condition — general deterrence — specific deterrence — manifest excess

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    appeal against sentence — caused 52 articles, namely parcels containing asbestos, to be carried by a postal service and did so in a way that gave rise to a danger of death or serious harm to another person, and was reckless as to that danger offence contrary to s 471.13 of Commonwealth Criminal Code — original sentence imposed 3 years’ imprisonment offender released on recognizance for 2 years in the sum of $5,000 after serving 12 months of sentence — nature and circumstances of offence — s 16A(2)(a) — expert evidence established that so long as asbestos remained in the bags, there would have been no physical risk to health — notwithstanding low risk of any actual physical harm being caused to those opening the parcels, however, it might be expected that some degree of psychological trauma might have been occasioned, particularly given ominous nature of affixed warnings — mental condition — s 16A(2)(m) — offender experiencing episode of psychosis when they sent packages — not contended that offender put on notice by previous cannabis use that their use of that drug could induce in them a psychotic state likely to precipitate criminal offending — offender’s psychotic state at time of offending should be regarded as reducing their moral culpability, despite the fact that their psychosis was precipitated by cannabis use — general deterrence — s 16A(2)(ja) — given psychotic state, offender’s suitability as vehicle for application of principle of general deterrence is somewhat reduced — specific deterrence — s 16A(2)(j) — need for specific deterrence is reduced, albeit offender needs to have the message reinforced that their offending was serious and that they need to avoid further psychotic episodes — manifest excess — in the unique circumstances of this case, sentence imposed is manifestly excessive, being outside range of sentences reasonably open having regard to the circumstances of offence and offender — likely that sentencing judge gave too little weight to offender’s reduced moral culpability and to the ‘low level’ of their offending which was influenced by deranged altruistic and humanitarian motives, and too much weight to general and specific deterrence, and denunciation — re-sentence — offender resentenced to 18 months’ imprisonment — after serving 6 months of sentence, offender to be released by way of recognizance release order in sum of $1,000 to be of good behaviour for 2 years — 6AAA — but for offender’s plea of guilty, sentence of 3 years’ imprisonment would have been imposed with conditional recognizance release order after serving 12 months of that sentence
  • 8 November 2019 —

    Marks v The Queen [2019] VSCA 253 — attempting to control aircraft offence — nature and circumstances of the offence — injury, loss or damage — mental condition — general deterrence — specific deterrence

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    appeal against sentence — attempting to take or exercise control of an aircraft making an international flight by threat of force offence contrary to s 16(3) of the Crimes (Aviation) Act 1991 (Cth) — original sentence imposed 12 years’ imprisonment with a 9 year non-parole period — manifest excess nature and circumstances of the offence — s 16A(2)(a) — injury, loss or damage — s 16A(2)(e) — seriousness of offending aggravated by credibility of initial threat, number of passengers and crew to whom threat directed, aircraft in take-off mode and particularly vulnerable to interference with its management and control during this stage of flight, need for physical restrain to be imposed, stress passengers and crew must have felt, threat of force did lead to plane returning to Melbourne as offender intended and consequential financial loss to airline suffered by need to refuel — offending triggered by psychosis in consequence of which offender’s intention was to prevent rather than cause harm and did not involve ulterior motive — when relative gravity of offending is considered within range of conduct contemplated by offence, it is of relevance that offender did not use actual for and purported bomb was not a bomb or other device capable of causing harm to plane or those travelling on it — sentencing judge otherwise treated offending conduct as if there had been a real bomb, do not consider that that is the correct approach — offending not motivated by any financial, political or like motive — offender had delusional belief that they were acting in best interests of those on board the plane, to save them — objective gravity of offender’s conduct fell within mid-level seriousness contemplated by offence — mental condition — s 16A(2)(m) — offender’s mental state reduced moral culpability and suitability as vehicle for general deterrence — at time of offending offender suffering from psychosis triggered by ingestion of an illicit drug, perhaps combined with underlying psychiatric illness — in circumstances of this case offender’s psychotic state should be regarded as reducing moral culpability despite fact that generally speaking offender’s culpability is unlikely to be reduced by state of mind resulting from use of illicit drugs if that person has history of drug use leading to hallucinations and bizarre behaviour — evidence established offender in early very fragile state of partial recovery from earlier psychotic episode at time of discharge, which would have rendered them particularly sensitive to psychosis inducing effect of methamphetamine which they took — offender would not have known or anticipated likely degree of consequences of taking the consumed methamphetamine — general deterrence — s 16A(2)(ja) — offender’s psychotic state means suitability as vehicle for general deterrence is somewhat reduced — general deterrence significant factor for this kind of offence because consequences of actions which may be of limited subjective culpability are potentially disastrous and class of persons for deterrence includes those who may be tempted to ingest illicit drugs before boarding plane flights — need to reflect general deterrence in sentence remains but relevance must be moderated when regard had to applicant’s mental condition — specific deterrence — s 16A(2)(j) — nature of offending coupled with character of prior offending raises issues of protection of community and supports view that sentence imposed must be influenced by need to bring home to offender gravity of offending and need to avoid further delusional behaviour resulting from consumption of illicit drugs — re-sentence — imposed 8 years’ imprisonment with a 5 year non-parole period — but for offender’s guilty plea, would have imposed 12 years’ imprisonment with a 8 year non-parole period  
  • 6 November 2019 —

    DPP (Cth) v Wang [2019] VSCA 250 — attempted drug importation — co-operation — nature and circumstances of the offence

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    appeal against sentence — attempting to import commercial quantity of a border controlled drug offence contrary to ss 11.1(1) and 307.1(1) of the Commonwealth Criminal Code — original sentence imposed 13 years’ and 10 months imprisonment with a 9 year non-parole period — co-operation — director appealing sentence as offender failed in part to co-operate in accordance with their undertaking — it cannot be said that when giving evidence the offender obliterated all incriminatory references to co-offender but offender may be said to have done their best — judges consider that offender’s partial failure to abide by undertaking was significant rather than modest — court’s function is not to punish but to assess the extent of non-co-operation in context provided for by s 16AC(4)(b) — whether co-offender was convicted or acquitted is beside the point, just as was the reason for co-offender’s acquittal — a ‘modest’ increase in sentence would suffice — nature and circumstances of the offence — offender appealing sentence on basis of error of judge — in a single sentence of sentencing remarks, sentencing judge misdescribed offender’s role in hierarchy of offending as offender not principal in attempted importation, offender pleaded guilty and to some extent lived up to undertaking to assist in prosecution of other offenders — judge did not fall into error of not going beyond categorising offending and failing to consider all the circumstances — the ‘group one’ misdescription was of no consequence but a needless distraction the like of which should be avoided by sentencing judges — offender’s appeal dismissed — re-sentence — 16 years’ and 6 months imprisonment with a 10 year 9 month non-parole period — 6AAA — in director’s appeal, if offender had not pleaded guilty, a sentence of 20 years’ imprisonment would have been imposed with a 15 year non-parole period
  • 30 October 2019 —

    R v Baker [2019] ACTSC 316 — obtaining financial advantage by deception — nature and circumstances of the offence — rehabilitation — general deterrence — guilty plea — contrition — reparation

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    sentence — obtaining financial advantage by deception from Department of Human Services offence contrary to s 134.2(1) of the Commonwealth Criminal Code — offence relates to $83,721.64 — nature and circumstances of the offence — s 16A(2)(a) — rehabilitation — s 16A(2)(n) — offending conduct ongoing for almost 5 years with around 50 false statements, offender received more than 3 times the amount to which they were actually entitled — no suggestion offender spent money on lavish lifestyle, as her motive was to meet daily financial needs including rent payment — offence was unsophisticated and did not involve features such as receipt of multiple benefits or use of false identities or bank accounts — assessed to be at low risk of general re-offending — offender has stable accommodation and enjoys supportive relationships — offender’s criminogenic risks relate to her health and poor decision-making in the past — offence was of substantial objective seriousness, although it was also quite unsophisticated — general deterrence — s 16A(2)(ja) — when sentencing for social security fraud, key sentencing consideration is general deterrence — offences of this kind are easy to commit and the Department and the general public depends upon recipients of benefits being trustworthy and honest in their dealings with the Commonwealth — several appellate courts have indicated that in cases of deliberate and sustained fraud a sentence of imprisonment is ordinarily required because it is unlikely that mitigating factors will outweigh importance of general deterrence — guilty plea — s 16A(2)(g) — contrition — s 16A(2)(f)(ii) — reparation — s 16A(2)(f)(i) — offender entered early plea of guilty, indicating contrition — for Commonwealth offences, an offender who pleads guilty is entitled to a discount on sentence if plea is evidence of their remorse, acceptance of responsibility, and willingness to facilitate justice — offender has repaid $6,446.65 to the Department, the Department has withheld part of offender’s fortnightly benefits — repayment has not occurred through any significant sacrifice by offender — most of overpayment remains outstanding — sentence — 2 years’ imprisonment imposed to be served by way of intensive correction order — reparation order pursuant to s 21B of the Crimes Act that sum of $77,382 be paid to the Department
  • 29 October 2019 —

    Lyons v The Queen [2019] VSCA 242 — child exploitation offences — nature and circumstances of offence — antecedents — rehabilitation

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    appeal against sentence — using a carriage service to access child exploitation material, and using a carriage service to transmit child exploitation material offences — additional offence of soliciting child exploitation material was taken into account pursuant to s 16BA — original sentence imposed 2 years’ and 6 months imprisonment with a recognizance release order to be of good behaviour for 4 years after serving 18 months imprisonment — nature and circumstances of offence — s 16A(2)(a) — antecedents — s 16A(2)(m) — sentencing judge made an error when they said they were sentencing offender as a serious sexual offender — unlikely sentencing judge’s error materially affected the sentence but judge unable to be satisfied that it ‘could not have materially affected’ sentence, so it becomes necessary to consider whether a different sentence should be imposed — no different sentence should be imposed as sentences imposed and cumulation ordered were appropriate to offending — serious instance of accessing child exploitation material, including considerable material in higher classification of seriousness — offender was end user in market of depravity where young children are exploited and violated — rehabilitation — s 16A(2)(n) — it would be counterproductive to now impose a sentence that would interfere with completion of offender’s sex offender program — leave to appeal granted — appeal dismissed — ancillary order recording offender had been sentenced as serious sexual offender set aside
  • 25 October 2019 —

    R v Leonard Properties Pty Ltd & Anor [2019] QDC 209 — exporting goods offences — general deterrence — nature and circumstances of the offence — antecedents — guilty plea — delay

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    sentence — Leonard Properties Pty Ltd charged with 32 counts of exporting of prescribed goods offence contrary to s 8(3)(a) of the Export Control Act 1982 (Cth) and 1 count of conveying prescribed goods with intent to export offence contrary to s 8(3)(b) of the Export Control Act 1982 (Cth) — offender (company director) charged with 22 counts of exporting of prescribed goods offence contrary to s 8(3)(a) of the Export Control Act 1982 (Cth) and 1 count of conveying prescribed goods with intent to export offence contrary to s 8(3)(b) of the Export Control Act 1982 (Cth) — offences relate to failure to follow fumigation and inspections processes required for quarantine purposes in the export of timber or timber products — general deterrence — s 16A(2)(ja) —certification and inspection scheme of fundamental importance to gaining and maintaining access for commodities into many overseas markets — offences have potential to undermine Australia’s reputation as safe exporter of timer and thereby harm the industry and the Australian economy — need for general deterrence strong — nature and circumstances of the offence — s 16A(2)(a) — antecedents — s 16A(2)(m) — sentencing judge took into account offender’s absence of previous convictions and otherwise good character — there was no fraud involved on offender’s part — once offender found out what was happening they immediately rectified the situation — sentencing judge took into account the impact of a period of imprisonment (even suspended) might have upon his working ability in China — guilty plea — s 16A(2)(g) — sentencing judge took into account offender’s early pleads of guilty (committal) — delay — sentencing judge took into account the significant delay between the investigation in 2013 and the laying of charges in 2017 — sentence — fine of $335,000 imposed on the company and $25,000 on the offender
  • 24 October 2019 —

    Kyuldzhiev v The Queen [2019] WASCA 162 — drug importation — nature and circumstances of the offence

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    appeal against sentence — importing a commercial quantity of a border controlled drug offence contrary to s 307.1(1) of the Commonwealth Criminal Code — offence relates to 23.7kg of pure methamphetamine — original sentence imposed 13 years’ imprisonment, with a 9 year and 6 month non-parole period — nature and circumstances of the offence — the nature, quantity, purity, source and value of the drugs concerned are highly relevant to assessing the objective seriousness of federal drug offences — necessary to bear in mind that often those involved in drug importation will know nothing about what they are dealing with except that it is a quantity of an illicit substance — it follows there will be many cases where a sentencing judge will be more concerned to identify the level of offender’s criminality by looking to state of offender’s knowledge about importation in which they were involved — leave to appeal refused — appeal dismissed
  • 18 October 2019 —

    R v Kennedy [2019] NSWCCA 242 — specimen importation and exportation offences — manifest inadequacy — general deterrence — rehabilitation — guilty plea — nature and circumstances of the offence

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    appeal against sentence — 2 counts related to attempts to export regulated native specimens offences contrary to s 303DD of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and s 11.1(1) of the Commonwealth Criminal Code — 2 counts of importations and attempted importations of regulated live specimens offences contrary to s 303EK(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) — 1 count of possession of specimens which were Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) specimens and offender was reckless as to fact that specimens were CITES specimens and the specimens did not belong to a native species offence contrary to s 303GN(2) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) — 1 count of dealing with money less than $100,000 which is reasonable to suspect is proceeds of crime offence contrary to s 400.9(1A) of the Commonwealth Criminal Code — original sentence imposed 3 years’ imprisonment, to be served by way of intensive correction order — manifest inadequacy general deterrence — s 16A(2)(ja) — 3 years imprisonment served by way of ICO was manifestly inadequate — general deterrence, denunciation and protection of community are critical principles under EPBC Act involving threats to Australian fish, fauna and biodiversity — offending which threatens native species and biodiversity warrants stern punishment — maximum penalty for importation and exportation offences is 10 years imprisonment, identifying the view of Commonwealth Parliament about seriousness of threats to Australian fish, fauna and biodiversity — importation offences in this case had potentially catastrophic consequences for Australian ecosystem — offending of this kind is notoriously difficult to detect — rehabilitation — s 16A(2)(n) — guilty plea — s 16A(2)(g) — prior to being sentenced offender took significant steps toward rehabilitation — 25% discount awarded for offender’s guilty plea to reflect utilitarian value — nature and circumstances of the offence — s 16A(2)(a) — this is some of the most serious offending of its kind which has come before courts — sentence manifestly inadequate — re-sentence — sentence imposed 4 years’ imprisonment with a 2 year 6 month non-parole period
  • 11 October 2019 —

    Said v The Queen [2019] NSWCCA 239 — preparatory terrorism offence — guilty plea — contrition — parity — nature and circumstances of the offence — antecedents

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    appeal against sentence — making a document connected with preparation for a terrorist act and offender knew of that connection offence contrary to s 101.5(1) of Commonwealth Criminal Code — original sentence imposed 9 years’ and 6 months imprisonment, with a 7 year and 1 month non-parole period — guilty plea — s 16A(2)(g) — contrition — s 16A(2)(f) — parity — original sentence imposed before Xiao v The Queen sentencing judge in error in failing to take into account utilitarian value of plea of guilty — necessary for court to independently exercise the sentencing discretion afresh — offender’s argument that offender should receive greater discount of 10% for plea of guilty when one has regard to 3 co-offenders receiving same discount is not persuasive — all pleas late pleas, none entered at first reasonable opportunity — offender’s plea entered 12 days before 6 week trial clearly limited the utilitarian value of plea — prosecution still had to fully prepare trial and the court system had to fully engage in accommodating a 6 week trial up until plea — fact that co-offenders’ pleas may have been entered later does not provide basis for successfully arguing sentencing judge wrongly exercised discretion — while open to sentencing judge to conclude that plea of guilty might be seen as some movement away from previously held ideology, the issue of remorse and acceptance of responsibility could not be put any higher than that — particularly so when applicant did not give evidence as to those matters, and did not given evidence on sentence — 10% discount for utilitarian value of the guilty plea is appropriate — nature and circumstances of the offence — s 16A(2)(a) — objective seriousness of offending is high — seriousness of the contents of document cannot be measured by how many words are written, nor by lack of sophistication of expression — clear from extracts that comparative simplicity of expression did not obscure high objective seriousness of content of documents — each target of proposed killing, building and type of building specified in documents were part of machinery for maintaining law and order in society — content of documents was directed at substantial disruption of part of machinery of government — appropriate conclusion on re-sentence that references to doing “something major” and “something massive” indicated level of premeditation and planning, i.e. that act should be of a martyrdom type so that documents operated as an exhortation to the members of the group to bring about the result referred to — limited dissemination of material in documents added to seriousness of offending in that greater likelihood of them being acted on by a small group, contrasted with unlikelihood of them being acted on if widely published — antecedents — s 16A(2)(m) — offender’s good behaviour in prison, offender’s depressive disorder, difficult personal background and onerous conditions of custody taken into account — re-sentence — 9 years’ imprisonment imposed with a 6 year and 9 month non-parole period
  • 8 October 2019 —

    DPP v Korras [2019] VCC 1681 — tax fraud — nature and circumstances of the offence — general deterrence — guilty plea — character — contrition — reparation  specific deterrence — rehabilitation — delay — hardship

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    sentence — dishonestly causing a loss or risk to the Commonwealth knowing or believing that the loss would occur or that there was a substantial risk of the loss occurring offence contrary to s 131.1(5) of Commonwealth Criminal Code — offence relates to $85,638 of tax evaded — nature and circumstances of the offence — s 16A(2)(a) — offender not instigator of scheme but knew what was happening and turned a blind eye to it — while this lessens moral culpability to some extent, offender was joint owner of company and in position to stop offending conduct which lasted more than 3 years — modestly serious example of this offence and offender’s moral culpability is high — general deterrence — s 16A(2)(ja) — general deterrence and denunciation are prime considerations in respect of this offence — courts have significant responsibility to protect integrity of revenue system by imposing punishment for deliberate and sustained fraud to deter others — tax fraud has many harmful, but often hidden, social consequences, is difficult to detect and if undetected the rewards can be great — crimes not victimless because burden of fraud falls on whole Australian community — guilty plea — s 16A(2)(g) — plea entered at first reasonable forensic opportunity and plea has significant utilitarian benefit in light of the likely length and complexity of any trial — it also indicates an acceptance by offender of responsibility for offending conduct and a willingness to facilitate the course of justice —— character — s 16A(2)(m) — contrition — s 16A(2)(f) — reparation — s 16A(2)(f)(i) — offender of relevantly prior good character, worked hard to provide for family and contributed to community in number of ways — offender sentenced on the basis that offender is truly remorseful for offending — also evident by fact offender has made full restitution to the ATO — specific deterrence — s 16A(2)(j) — rehabilitation — sentencing judge accepted offender learnt salutary lesson from investigation, charging and legal process of this matter — accordingly, sentencing judge gave no weight to specific deterrence or protection of community in sentencing, and assessed prospects of rehabilitation as being very good — delay — delay in finalising proceedings through no fault of offender, with matter hanging over offender’s head for some time this delay caused degree of stress and anxiety to offender — hardship — s 16A(2)(p) — offender’s care of handicapped mother not such as to constitute exceptional circumstances of type sufficient to enliven s 16A(2)(p), however sentencing judge accepted any sentence of imprisonment by reason of offender’s mother’s ill health would weigh heavily on offender in a custodial environment — sentence imposed 2 years’ and 6 months imprisonment, offender released immediately on recognisance release order and a $10,000 fine — s 6AAA — sentencing judge would have imposed sentence of 3 years’ and 6 months imprisonment with a 2 year non-parole period and a $12,500 fine but for offender’s plea of guilty
  • 7 October 2019 —

    DPP v Olczyk [2019] VCC 1641 — drug offences — nature and circumstances of the offence — delay — rehabilitation — contrition — guilty plea — general deterrence

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    sentence — importing a commercial quantity of a border controlled drug, trafficking a marketable quantity of a controlled drug, attempting to manufacture a controlled drug, possession of a controlled drug, failure to comply with an order under s 3LA(2) — state firearm offence — Charge 1 relates to 629.9g of pure MDMA, Charge 2 relates to ‘no less than 100g MDMA’, Charge 4 relates to 330.3g of pure MDMA — nature and circumstances of the offence — s 16A(2)(a) — offending very serious, involved in a sophisticated scheme to import, and traffick MDMA and manufacture MDA — level of sophistication and complexity in offending was high — offender not mastermind or driving force in importation, having more of an ‘hands on’ role — offender doing this for financial gain — conduct deliberate, sustained and ‘not uncomplicated’ — sentencing judge not satisfied on basis of probabilities of drugs being in any way instrumental in offending — delay — close to 3 years between arrest and sentence, offender sentenced 22 months after they were arraigned and pleaded guilty — delay here of significant mitigatory value, offender left in a state of uncertain suspense and status as remand prisoner made the service of that time more onerous owing to limitations upon courses and programs, and ‘just the plain fact of there being no light at the end of the tunnel’ — in course of delay, offender taken steps along path to rehabilitation — rehabilitation — s 16A(2)(n) —  contrition — s 16A(2)(f) — offender has strong or positive prospects of rehabilitation — offender undoubtedly ‘leapt in down at the deep end’ with offending of this magnitude, but offender came to crime late in life and with no past proven criminality — offender took responsibility and did not seek to blame anyone other than themselves — offender has used time in custody usefully doing courses and programs and been drug free — sentencing judge prepared to find offender felt remorse for their crimes — guilty plea — s 16A(2)(g) —guilty plea at early stage, taking responsibility for crimes and facilitated the course of justice, and the community has been spared the time, cost and effort of a trial up in the court, and it would have been a trial of real complexity — general deterrence — s 16A(2)(j) — general deterrence is the primary sentencing purpose, in relation to drug offences in particular — message must be sent that life altering sentences await those who chose to import or traffick drugs — sentence — imposed 9 years’ and 8 months imprisonment with a 4 year and 10 month non-parole period, with 1048 days having already been served — s 6AAA — s 6AAA statement is artificial in this sense, as had offender not pleaded guilty there would not have been guilty plea discount as well as no remorse on display and less favourable rehabilitation prospects — this case should not be used in other cases to demonstrate type of sentences generally open for importation of commercial quantity of border controlled drug — combination of factors which produced highly unusual outcome — had offender not pleaded guilty, would have been sentenced to 15 years’ and 6 months imprisonment, with an 11 year and 6 month non-parole period
  • 4 October 2019 —

    Alou v The Queen [2019] NSWCCA 231 — terrorism offence — rehabilitation — deterrence — age — non-parole period

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    appeal against sentence — aiding, abetting, counselling or procuring the commission of a terrorist act offence contrary to ss 11.2 and 101.1(1) of Commonwealth Criminal Code — original sentence imposed 44 years’ imprisonment with a 33 year non-parole period — rehabilitation — s 16A(2)(n) — sentencing judge not in error by sentencing offender on basis that offender was danger to the community and had ‘grim’ or ‘bleak’ prospects of rehabilitation — sentencing judge not in error by concluding that prospects of rehabilitation would remain poor during ‘very lengthy sentence’ — absence of evidence that there will be any change in prospects of rehabilitation does not mean sentencing judge not obliged to make assessment of prospects of rehabilitation — consideration of Bugmy v The Queen [1990] HCA 18 — Bugmy not authority for proposition that assessment of prospects of rehabilitation cannot be made in circumstances of lengthy head sentence — deterrence — s 16A(2)(ja) — age — s 16A(2)(m) — offender aged 18 years at time of offending — clear authority that significance of punishment, deterrence and community protection means that mitigating factors such as youth and prospects of rehabilitation are given less weight when sentencing for terrorism offences — youth remains relevant factor but will be given less weight in light of seriousness of terrorism offence and in absence of causal link between offender’s age and offence — fact that offender was radicalised at age 17 does not lead to conclusion of causal link between the offence and offender’s youth so as to reduce offender’s moral culpability — continuing detention scheme — sentencing judge not in error by not taking into account as a mitigating factor existence of continuing detention scheme for high risk terrorist offenders that may or may not exist at expiration of sentence — non-parole period — s 19AG — sentencing judge not in error by mechanically fixing the non-parole period rather than determining non-parole period through discretion and fixing it subject to s 19AG — obligation to impose minimum non-parole period in s 19AG(2) does not preclude court from fixing greater non-parole period — s 19AG(3) does allow court when fixing a life sentence to impose a minimum non-parole period which is less than what would be required for a determinate sentence greater than 30 years — imposition of a life sentence simply for the purpose of attracting minimum non-parole period of 22.5 years would be an error of sentencing discretion — nothing incompatible with exercise of judicial power for court to determine non-parole period with regard to statutory requirements — leave to appeal granted — appeal dismissed
  • 3 October 2019 —

    R v Suttle [2019] NSWDC 538 — child exploitation offences — nature and circumstances of the offence — victim impact statements — guilty plea — rehabilitation — general deterrence — specific deterrence

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    sentence — 6 counts of use of carriage service to send indecent material to person under 16 years offence contrary to s 474.27A(1) of Commonwealth Criminal Code — 17 counts of state child exploitation offences — nature and circumstances of the offence — s 16A(2)(a) — offending occurred over 2 year period — for an adult to first lie about their age then form an online/Snapchat friendship with children with intention of requesting sex from them is a serious crime — victim of the offence — it should not be assumed, without evidence to the contrary, that there was no significant damage by way of long-term psychological and emotional injury from any child sexual assault offence — guilty plea — s 16A(2)(g) — offender will get full benefit generally allowed for early plea, facilitation of the course of justice and acceptance of responsibility — it is important to recognise that none of the young victims had to give evidence in court — rehabilitation — s 16A(2)(n) — sentencing judge confident offender can with help be restored to normal community life — offender has strong pro-social supports in the community and will benefit from assistance while on parole — general deterrence — s 16A(2)(ja) — specific deterrence — s 16A(2)(j) — offender and others must by the harshness of custodial punishment learn the consequences of sexual offending against children — social media networks offer many advantages but they can be misused and innocence exploited — offender was knowingly taking advantage of children, lied to them about who offender was and motivation was purely selfish — offender only though of themselves and their own sexual gratification — sentence — total sentence imposed 7 years’ and 11 months imprisonment with a 4 year and 11 month non-parole period
  • 25 September 2019 —

    DPP v Mardirian [2019] VCC 1551 — bankruptcy offences — nature and circumstances of the offence — antecedents — guilty plea — contrition — rehabilitation — delay

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    sentence — 3 charges of being an undischarged bankrupt and obtaining loans of more than $3,000 without advising the lender that you were an undischarged bankrupt offences contrary to s 269(1)(a) of the Bankruptcy Act 1966 (Cth) — offences relate to loans of $955,000, $900,000 and $560,000 respectively — a similar offence relating to a loan of $17,000 was taken into account pursuant to s 16BA — nature and circumstances of the offence — s 16A(2)(a) — antecedents — s 16A(2)(m) — criminal record of multiple counts of obtaining property by deception in 2002 and 2019, the latter for which offender currently serving sentence of 3 years with a 2 year non-parole period — whilst strictly not prior conviction, relevant to offender’s moral culpability for this offending — offending occurred during offender’s fourth bankruptcy, so offender fully aware of obligations towards creditors as a bankrupt — total quantum makes offending serious — enhancing seriousness is that it involved a large amount of money and personal vulnerability on the part of the victim, and breach of trust arising out of victim’s personal relationship with offender — further aggravating features of offending are that offender used bank account in name of someone else to accept deposits and motivation for offending was nothing but greed — guilty plea — s 16A(2)(g) — contrition — s 16A(2)(f) — relatively late plea given matter was listed for trial before plea offer was made and matter was subject of contested committal, but some utilitarian benefit in the plea as obviated the need for a trial — guilty plea also some evidence of remorse — hard to see any real empathy towards victim here, but sentencing judge did take it into account — rehabilitation — s 16A(2)(n) — delay — delay has meant no offending since these offences and thus enhances offender’s prospects of rehabilitation — offences hanging over offender for a lengthy period — given assessment of moral culpability, sentencing judge regarded prospects of rehabilitation as being guarded, particularly given prior convictions — totality — while sentencing judge accepted 3 offences involved a single course of conduct, they also involved a number of individual transactions within that period and offending occurred over lengthy period — separate offending should be reflected in some cumulation between the individual accounts — sentencing judge had regard to current sentence and considerations of totality, looking at criminality involved in overall offending, stepped back and applied principles of parsimony and proportionality in fixing total overall effective sentence — general deterrence — s 16A(2)(ja) — specific deterrence — s 16A(2)(j) — general deterrence very important to maintain integrity of bankruptcy law without which there would be serious public disadvantage of various economic, commercial and social kinds — sentence must send signal to those under state of bankruptcy to be conscientious in dealings with creditors — specific deterrence also relevant due to prior offending — sentence imposed 3 years’ and 9 months imprisonment with a 2 year and 6 month non-parole period — reparation order of outstanding amount of $1,796,241.58 to victim
  • 20 September 2019 —

    R v Doherty [2019] NSWDC 515 — drug importation — guilty plea — nature and circumstances of the offence — mental condition

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    sentence — aided and abetted an attempted possession of a commercial quantity of a prohibited drug offence contrary to ss 307.5, 11.1 and 11.2 of Commonwealth Criminal Code — offence related to 3,771.5g of pure methylamphetamine — two other co-offenders — guilty plea — s 16A(2)(g) — otherwise appropriate sentence will be reduced by 25% to take into account the cooperation and facilitation of the course of justice implicit in offender’s guilty plea — nature and circumstances of the offence — 16A(2)(a) — offender willing to assist if necessary but played only a limited hands on role — while this is an aid and abet an attempted possession offence, offender’s moral culpability can be measured by their understanding that Co-offender 1 was using them to secure the importation of something illegal and that Co-offender 2 was taking the primary risk by collecting and transporting the consignment — cannot be inferred offender expected some cash reward but impossible to accept offender did not expect some benefit from assisting co-offenders — sentencing judge prepared to accept offender awed by Co-offender 1’s wealth and apparent financial success and that they were psychologically vulnerable to requests by such a person for help, offender was not an innocent dupe — mental condition — s 16A(2)(m) — sentencing judge prepared to accept offender has had number of psychological problems for which offender has benefited from counselling and treatment — to an extent they may have predisposed offender to accepting whatever it was that Co-offender 1 offered them or offender thought they might gain from helping them — offender may have been vulnerable to a flawed thinking process but that does not significantly reduce offender’s moral culpability nor do offender’s psychological conditions make offender less of an appropriate vehicle for specific and general deterrence — sentence imposed 6 years’ imprisonment with a 3 year non-parole period
  • 16 September 2019 —

    R v Maruskanic [2019] ACTSC 337 — child exploitation offences — nature and circumstances of the offence — character — rehabilitation — specific deterrence — general deterrence — general deterrence — guilty plea

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    sentence — using a carriage service to transmit child exploitation material offence contrary to s 474.19(1)(a)(iii) of the Commonwealth Criminal Code and using a carriage service to access child exploitation material contrary to s 474.19(1)(a)(i) of the Commonwealth Criminal Code — additional state offence — nature and circumstances of the offence — s 16A(2)(a) — sentencing judge accepted that offences involving videos are objectively more serious than those involving photographs because of the longer period that the victim was subject to abuse and humiliation — sentencing judge satisfied that Commonwealth offences, whilst still serious, falls towards the lower end and the lower end of mid-range respectively for such offences — at time of offences offender subject to stress and exhibited symptoms consistent with depression, but at a sub-clinical level — moral responsibility for these offences not significantly diminished, but medical evidence does put in context what would otherwise appear to be conduct completely out of character — character — s 16A(2)(m) — rehabilitation — s 16A(2)(n) — specific deterrence — s 16A(2)(j) — evidence of prior good character may not carry as much weight when determining an appropriate sentence for offences of this kind, but that does not mean prior good character to be ignored — evidence of prior good character supports sentencing judge’s understanding of the medical opinion that these offences occurred within particular situational context and are not likely to be repeated — very good prospects for rehabilitation, and that sentences imposed do not need to have significant personal deterrence aspect — general deterrence — s 16A(ja) — general deterrence has been described as predominant sentencing consideration for these types of offences — sentencing judge did not accept argument that immediate term of imprisonment ordinarily warranted for offences involving child exploitation unless exceptional circumstances can be demonstrated — what does arise from authorities is that child pornography offences are always serious offences — court should approach sentencing of child pornography offences in the same way that it approaches sentencing for other serious offences and as prescribed by various statutes governing sentencing as appropriate — it will very frequently  be the case that application of ordinary sentencing principles to the facts in individual child exploitation offences will result in the imposition of an immediate term of imprisonment, but that will not always be the case — guilty plea — s 16A(2)(g) — 25% reduction of sentence to reflect pleas of guilty — sentencing judge accepted that offender’s pleas indicate sincere remorse and a willingness to facilitate the administration of justice — sentence — sentence imposed 20 months’ imprisonment served by way of Intensive Correction Order
  • 13 September 2019 —

    Diaz v The Queen [2019] NSWCCA 216 — drug importation offence — guilty plea — mental condition — hardship

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    appeal against sentence — attempting to import a commercial quantity of a border controlled drug offence contrary to s 11.1(1) and 307.1(1) of Commonwealth Criminal Code — original sentence imposed 9 years’ and 6 months imprisonment with a 4 year and 10 month non-parole period — offence relates to 3.5kg of pure cocaine — guilty plea — s 16A(2)(g) — failure to provide utilitarian discount for plea of guilty per Xiao v The Queen — sentencing judge did give a discount of 25% for the “facilitation of justice” to the offender — given for the wrong reason, arguable as it happens the right discount derived from entry of early plea — if discount had been provided for utilitarian value of plea of guilty, discount would in all likelihood been 25% — Xiao error cannot be said to fit comfortably within errors that do not require consideration of resentence — resentence must be considered — mental condition — 16A(2)(m) — sentencing judge accepted offender receiving medication for stomach ulcers and anxiety and aspirin for heart problems, but in absence of sworn evidence from offender that was able to be tested in cross-examination, sentencing judge not prepared to take into account opinion in psychological report of criminal conduct contributed by any mental condition — hardship to the offender — offender spoke of fearing for safety in prison due to refusal to assist other prisoners smugglings items into maximum security prison — absence of evidence of hardship arising from it — sentencing judge found not mitigating — reflection not only of fact that it is sometimes difficult to demonstrate protection is indeed more onerous for particular prisoner than main population, but also the fact that it is not always possible to predict whether a prisoner will remain on protection into the future after sentence has been imposed — resentenced to 9 years’ imprisonment with 4 year and 6 month non-parole period
  • 10 September 2019 —

    The Queen v Ware [2019] TASSC — smuggling offences — nature and circumstances of the offence — general deterrence — specific deterrence — guilty plea — rehabilitation — co-operation

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    sentence — 3 counts of aggravated illegal importation of plants offence contrary to s 67(3) of the Quarantine Act 1908 (Cth), and 7 counts of importing conditionally non-prohibited goods offence contrary to s 186(4) of the Biosecurity Act 2015 (Cth) — offences related to 2,186 garlic bulbils — nature and circumstances of the offence — s 16A(2)(a) — the family to which garlic, a member of the Allium family belongs, is a known host for a serious plant pathogen known as “Xyella fastidiosa”, a disease not present in Australia but native to United States and Canada where the garlic was imported from — garlic also host for number of exotic pathogens and pests — numerous unwanted exotic insects known to be present in the United States and Canada, which are not ordinarily found in Australia — sentencing judge accepted disease had not been detected in garlic bulbils, but the law reflects the fact that the risk exists, based upon expert assessment — the only way to manage this risk is through enforcement of laws offender breached — for a modest financial advantage, offender prepared to engage in course of conduct which created risk to all agricultural activity in Australia — general deterrence — s 16A(2)(ja) — specific deterrence — s 16A(2)(j) — sentencing judge regarded need for general deterrence as particularly important aspect of sentencing exercise in this case — did not ignore the need for specific deterrence in the face of protracted course of conduct — conduct ceased because offender was caught, not because offender thought better of what they were doing — guilty plea — s 16A(2)(g) — sentencing judge prepared to accept the plea was entered at relatively early stage after resolution of technical matters, but sentencing judge did not accept plea made at earliest opportunity — some utilitarian benefit accrues in consequence of offender’s plea, given 10% discount — guilty plea can be evidence of remorse — when guilty plea considered in context of remorse, it is appropriate to have regard to the strength of the Crown case — there was some recognition of the inevitable in offender’s plea — rehabilitation — s 16A(2)(n) — co-operation — s 16A(2)(h) — admissions made by offender during interview and offender co-operated with authorities — held in high regard by peers, evidenced by leadership role in industry body — suffered significant loss of reputation, relevant for rehabilitation that will influence offender’s future conduct and discourage further offender — sentence imposed 11 months’ imprisonment, released on recognizance after 2 months for $2,000 and ordered to be of good behaviour for 3 years
  • 27 August 2019 —

    R v Ralston [2019] ACTSC 236 — child exploitation offence — nature and circumstances of offence — antecedents — general deterrence — specific deterrence

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    sentence — using a carriage service to groom a person under 16 years of age offence contrary to s 474.27(1) of Commonwealth Criminal Code nature and circumstances of the offence — s 16A(2)(a) — any grooming offence is serious, although due to limitation sentencing judge found on offending (offending related to 2 messages) it must follow that objective seriousness of the offence must be regarded as below medium — antecedents — s 16A(2)(m) — lack of criminal records is usually fact giving rise to significant leniency, but significance is diminished in matters of this type — offender has serious mental health issues — general deterrence — s 16A(2)(ja) — specific deterrence — s 16A(2)(j) — lengthy period of being subject to a supervision order will meet community’s interests and signify by way of general deterrence how seriously courts look upon this type of conduct — sentence — exception to imprisonment can be applied so offender does not serve period of full-time imprisonment — offender sentenced to 24 months’ imprisonment suspended with immediate effect, entering into 3 years’ recognisance release order
  • 26 August 2019 —

    Ahmad v The Queen [2019] NSWCCA 198 — attempted drug possession and importation offences — manifest excess — parity

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    appeal against sentence — attempting to possess a marketable quantity of a border controlled drug offence contrary to ss 11.1(1) and 307.6(1) of Commonwealth Criminal Code and attempting to import a marketable quantity of a border controlled drug offence contrary to ss 11.1(1) and 307.2(1) of Commonwealth Criminal Code — 2 state offences — federal offences relate to 74g of cocaine and 367g of cocaine respectively — original sentence imposed 7 years’ imprisonment with a 5 year non-parole period — manifest excess — manifest excess cannot be established by pointing to a statistical range of sentence and arguing that the particular sentence fell at or near the top of that range — says nothing about whether or not sentencing judge erred in determining sentence — parity — each offender faced charges the other did not and had different roles — offender held supervisory role in relation to overall scheme to import drugs in consignments mailed from the United States — while co-offender a “trusted lieutenant” to offender, co-offender did as was directed even to performing most menial of tasks — while both offenders had limited criminal histories, offender had been largely unemployed in adult life whereas co-offender lived “a relatively productive life with extensive employment history to his credit” — leave to appeal granted — appeal dismissed
  • 26 August 2019 —

    Martin v The Queen [2019] NSWCCA 197 — child exploitation offences — manifest excess

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    appeal against sentence — 5 counts of using carriage service to transmit child exploitation material offence contrary to s 474.19(1)(a)(iii), 7 counts of using carriage service to solicit child exploitation material offence contrary to s 474.19(1)(a)(iv), and 8 counts of using carriage service to transmit indecent communication to persons under 16 years old offence contrary to s 474.27A(1) of Commonwealth Criminal Code — 2 state offences — 15 additional Commonwealth child exploitation offences taken into account under s 16BA — original sentence imposed 7 years’ imprisonment with a 4 year non-parole period — manifest excess — offending occurred over 2.5 year period involving significant deliberation and manipulation, including use of multiple online identities and misrepresentation of offender’s age to victims — offender very active and persistent offender who did not confine interest in child pornography to examination of images but also contacted persons whom offender understood to be young males and engaged them in indecent communications despite efforts by many to have offender desist from further contact — total effective sentence well within exercise of reasonable sentencing discretion in all circumstances of this case — leave to appeal against sentence granted — appeal against sentence dismissed
  • 26 August 2019 —

    DPP (Cth) v Lou [2019] VCC 1399 — child exploitation offences — nature and circumstances of the offence — guilty plea — contrition — age — specific deterrence — rehabilitation

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    sentence — import tier 2 goods offence contrary to s 233BAB(5) of Customs Act 1901 (Cth) — 1 child exploitation State offence — federal offence relates to importation of 2 sex dolls with childlike features — nature and circumstances of the offence — s 16A(2)(a) — no evidence that offender sought to sell or distribute dolls, dolls were for offender’s own use — while it may invoke feelings of disgust, in all the circumstances sentencing judge did not view objective seriousness of federal offence as being at the high end — guilty plea — s 16A(2)(g) — contrition — s 16A(2)(f)(ii) — guilty plea entered at earliest opportunity demonstrates offender’s acceptance of responsibility, saved time and expense of trial and therefore facilitated the course of justice — has distance to go in terms of treatment in order for offender to develop true remorse — age — s 16A(2)(m) —offender 21 years old at time of sentence, and between 19 and 20 years old during time of offending — offender very immature for their age and level of education — immaturity has also been accentuated by cultural dislocation having been isolated in Australia from a relatively young age — sentencing judge accepted well-settled principles in relation to young offenders and that they do have application in current case, but weighed those considerations with the seriousness of offending — youth and immaturity of offender together with type of offences make offender a comparatively vulnerable prisoner — specific deterrence — s 16A(2)(j) — risk of further online offending if offender faced with time of heightened stress or loneliness — but offender young and does not have prior history — criminal process already had significant impact on offender and offender now appreciates seriousness of conduct — rehabilitation — s 16A(2)(n) — if able to complete further counselling and gain greater insight into impact of offending on vulnerable children, prospects of rehabilitation may be assessed as very good — supportive, well-resourced family and undoubtedly offender will gain further insight as they naturally mature — sentence — imposed 4 months’ imprisonment, released upon 3 year recognizance order and community correction order
  • 22 August 2019 —

    R v Uppiah [2019] VCC 1324 — child exploitation offences — rehabilitation — guilty plea — contrition — deportation — nature and circumstances of the offence

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    sentence — 5 counts using a carriage service to cause child exploitation material to be transmitted to themself, 3 counts of using a carriage service to transmit indecent communications to a person under the age of 16 years, 1 count of using a carriage service for sexual activity with a person under the age of 16 years, 4 counts of using a carriage service to menace, harass or cause offence, 4 counts of using a carriage service to transmit child exploitation material, 2 counts of using a carriage service to transmit communications to a person under age of 16 years with the intention of procuring the person to engage in sexual activity with offender — 10 state offences and transfer of 1 summary offence — rehabilitation — s 16A(2)(n) — sentencing judge cannot agree with submission that offender poses relatively low risk of further sexual reoffending — offender denied doing anything other than trying to help victims and claim contact with them was not for sexual purposes — offender has very little insight into offending — it is plain offender’s communications with all victims were of a sexual, depraved and predatory nature and overall such conduct continued for over 4 years — guilty plea — s 16A(2)(g) — early guilty pleas that have significant utilitarian values as no contested committal was heard and victims were required to give evidence, saving the cost of a trial and showing a willingness to facilitate the course of justice — contrition — s 16A(2)(f) — feeling shame and guilt and acknowledging that offender has caused a lot of stress for offender’s family does not necessarily constitute remorse — possible that offender has some appreciation for wrongdoing that at times seems like remorse but in sentencing judge’s view is a long way from being clear picture of true and unqualified contrition — deportation — no evidence put before court as to offender’s status although as someone who had apparently long outstayed a student visa this may well be a realistic expectation — the prospect that offender may be deported may weigh upon offender whilst in prison and mean that offender has lost any opportunity to have settled in Australia — sentencing judge considers this of little significance as a sentencing factor — offender spent 6 months in immigration detention which sentencing judge took into account in a “general way”, but not formally reckoned as time served under sentences imposed — nature and circumstances of the offence — s 16A(2)(a) — all but 2 charges are rolled-up charges — when sentencing rolled-up charges, although penalty remains the same, court must take into account overall seriousness of all individual acts when determining appropriate sentence — sentence — 12 years’ and 5 months imprisonment imposed with a 7 year and 11 month non-parole period
  • 16 August 2019 —

    R v Elmir (No 3) [2019] NSWSC 1040 — preparatory foreign incursion offence — nature and circumstances of the offence — rehabilitation — contrition — guilty plea — specific deterrence

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    sentence — committed acts in preparation for incursion into foreign country for the purpose of engaging in hostile activities offence contrary to s 119.1 of Commonwealth Criminal Code nature and circumstances of the offence — s 16A(2)(a) — connected to offender in R v EB [2018] NSWSC 201 — slightly below mid-range objective seriousness — offender undertook serious steps in commission of offence — preparatory acts involved travelling to Turkey, living at Islamic State safe house, acquiring military equipment, making contacts to enter into Syria, and seeking EB’s financial help to further offender’s objectives — fact that offender travelled to Turkey after impulsively leaving family while travelling in Dubai had limited mitigating effect as remained in Turkey for 2 month period — nothing to suggest that offender would not have pressed ahead with intention to enter Syria had offender not had ‘falling out’ with people at IS safe house — rehabilitation — s 16A(2)(n) — contrition — s 16A(2)(f) — affirmed R v Ghazzawy [2017] NSWSC 474 where offender’s renunciation of extreme ideological views bears directly upon assessment of prospects of rehabilitation — fact that offender did not give evidence at sentencing hearing or sign affidavit affects considerations of contrition, rehabilitation and community protection — fact that offender did not have access to formal rehabilitation or de-radicalisation programs, attempted to ‘explain away the behaviour of IS’, and left IS safe house due to considering Islamic beliefs of occupants not as ‘pure’ or ‘rigorous’ as offender’s own does not support finding that offender renounced extremist views — fact that offender declined to stand during sentencing hearing does not support conclusion that offender renounced extremist views as ‘sufficiently known that some persons holding extremist Islamic views’ refuse to stand in court — guilty plea — s 16A(2)(g) — offender pleaded guilty at latest possible time against strong Crown case — plea has some utilitarian value and facilitates the course of justice — offender entitled to 10% discount — specific deterrence — s 16A(2)(j) — specific deterrence must be given considerable weight where court not satisfied offender has renounced extreme views and beliefs — sentence — imposed 5 years’ and 5 months imprisonment with a 4 year and 1 month non-parole period
  • 9 August 2019 —

    R v Dirani (No 34) [2019] NSWSC 1005 — conspiracy preparatory terrorism offence — objective seriousness — rehabilitation — contrition

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    sentence — conspiracy to do acts in preparation of a terrorist act offence contrary to ss 11.5(1) and 101.6(1) of Commonwealth Criminal Code nature and circumstances of the offence — s 16A(2)(a) — offender committed acts in conspiracy with offender in R v Alou (No 4) [2018] NSWSC 221 in relation to shooting of Curtis Cheng terrorist act — offending high level of objective seriousness — significant degree of planning in conspiracy — offender played significant part to progress conspiracy and party to conspiracy for extended period — offender provided emotional, religious, ideological, financial and practical support — offender aware of planning for terrorist attack and did not seek to withdraw from conspiracy — rehabilitation — s 16A(2)(n) — contrition — s 16A(2)(f) — onus lies on offender to demonstrate genuine move away from ‘heavily radicalised and extremist views to an approach or belief system which points in a different direction’ — claim that reading of the victim impact statement produced ‘watershed moment’ in offender’s thinking unable to be accepted as mitigating factor as not tested by cross-examination — offender continuing to refuse to stand in court proceedings demonstrates offender has not moved away from extremist beliefs which motivated commission of offence — significant risk that offender would act again as a supporter, sympathiser or conspirator — co-operation — s 16A(2)(h) — offender’s co-operation in relation to facilitating the course of justice will only be demonstrated where offender takes additional steps beyond the ordinary requirements of a criminal trial — sentence — imposed 28 years’ imprisonment with a 21 year non-parole period
  • 9 August 2019 —

    R v Pan [2019] NSWDC 407 — possessing counterfeit money — specific deterrence — general deterrence — contrition — guilty plea — deportation

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    sentence — possessing counterfeit money (not excepted counterfeit coin) offence contrary to s 9(1)(a) of Crimes (Currency) Act 1981 (Cth) — specific deterrence — s 16A(2)(j) —  general deterrence — s 16A(2)(ja) — counterfeit money undermines confidence in integrity of Australian currency, which ordinary people rely on to conduct day-to-day transactions — sentencing judge noted offender kept counterfeit notes out of circulation — because offender has no insight into criminality of their behaviour, personal deterrence has some limited role to play — it is expected in gaming industry for some associates to ‘swindle’ by playing with counterfeit money — if offender continues to gamble, no reason to think offender would not come across further counterfeit currency — contrition — s 16A(2)(f) — guilty plea — s 16A(2)(g) — plea was entered on first day of trial, 5% discount allowed for utilitarian value of offender’s plea in the context — deportation — prospects of deportation is not a mitigating factor in sentencing  — sentence — 2 year conditional release order
  • 2 August 2019 —

    R v Hraichie (No 3) [2019] NSWSC 973 — preparatory terrorism offence — nature and circumstances of the offence — guilty plea

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    sentence — preparatory terrorist act offence contrary to s 101.6 of Commonwealth Criminal Code — offender committed acts in preparation for or planning terror attacks on Australian law enforcement officers in support of Islamic State — three additional state offences relating to serious acts of violence or threatened violence — mental condition — s 16A(2)(m) — no evidence that offender subject to mental illness or mental condition — nature and circumstances of the offence — s 16A(2)(a) — serious example of preparatory conduct — offending conducted over extended period of time and in four different stages — offending conducted while offender on parole or in custody — fact that terrorist act intended to kill police officers remains ‘very grave crime’, even where target group does not include ‘random members of the public’ — co-operation with authorities — s 16A(2)(h) — offender’s admissions to authorities made because ‘he was proud of his criminal acts’ — admissions do not reflect remorse or self-interest — reason for making admissions does not disqualify offender from discount, but will only be entitled to modest discount — contrition — s 16A(2)(f) — offender did not give evidence and not subject to cross-examination — second-hand expressions of contrition and remorse directed toward offender’s mother carry no weight in circumstances where statement cannot be tested and made against offender’s background of deeply entrenched views and beliefs — age — s 16A(2)(m) — offender aged 19 years at time of offence — offender’s youth does not provide significant mitigation on sentence due to gravity, variety and circumstances of offending — no causal link between offender’s age and criminal conduct — sentence — imposed 20 years’ imprisonment with 15 year non-parole period for preparatory terrorism offence — total effective sentence of 34 years’ imprisonment with 29 year non-parole period
  • 2 August 2019 —

    R v Freeman [2019] QCA 150 — attempted drug possession — hardship — manifest excess — guilty plea — delay

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    leave to appeal against sentence — attempting to possess a marketable quantity of a border controlled drug, and failing to comply with an order to assist access offence — original sentence imposed 4 years’ and 6 months imprisonment with a 2 year and 6 month non-parole period — offences relate to 383.6 grams of 3, 4-methylenedioxyethcathinone — hardship manifest excess — loss of offender’s contribution to a home-based family business and its financial consequences to the family are not dissimilar to the financial consequences which would be suffered by an inability to undertake part-time or full-time employment as a result of imprisonment — offender’s wife’s poor state of health and her inability to carry on the baking business on her own without offender’s assistance with heavy lifting and transportation — hardship to offender and wife was taken into account by sentencing judge and sentence imposed was not manifestly excessive because insufficient weight was attached to the matter — even if additional evidence admitted, not manifestly excessive — guilty plea — s 16A(2)(g) — delay — delay of 3 years provided offender with benefit of being at liberty — during that time, no indication prepared to plead guilty — matter set for trial on number of occasions — guilty pleas came very late and compelled by strength of prosecution case — sentence — leave to appeal against sentence denied
  • 24 July 2019 —

    R v Mohamed, Chaarani & Moukhaiber [2019] VSC 498 — engaging in and attempting to engage in a terrorist act — nature and circumstance of the offence — rehabilitation — contrition

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    sentence — engaging in and attempting to engage in a terrorist act contrary to s 101.1 of Commonwealth Criminal Code — three offenders adherents to Sunni Islam — Shia mosque target of offence — two offenders, Mohamed and Chaarani, attempted to set fire to mosque — all three offenders successfully set fire to mosque a few weeks’ later — nature and circumstances of the offence — s 16A(2)(a) — offence of engaging in terrorist act covers wide array of potential offending — no evidence that offenders intended any harm more than property damage — terrorist offences of property damage less serious than terrorist offences involving planned or achieved causation of death or serious injury — offending still serious — offenders supporters of Islamic State — ‘conduct driven by a depraved and evil ideology and mentality’ — fact that genesis of plan was in mind of Mohamed does not distinguish the level of criminality of offenders when they acted as a team in the commission of the offence — fact that first crime spontaneous or ‘dreamed up’ only hours before commission does not diminish criminality where offence was product of ‘quite long-standing extremist views’ — fact that offending was targeted towards a discrete minority, Shia Muslims, does not lessen seriousness of offence — offence caused ‘great sense of discomfort to all fair minded members of our community’ —  victim of the offence — s 16A(2)(d) — injury, loss or damage of the offence — s 16A(2)(e) — ‘traumatising and frightening’ impact of offence on members of mosque as primary victims taken into account — troubling impact of offence against broader community taken into account — rehabilitation — s 16A(2)(n) — contrition — s 16A(2)(f) — specific deterrence — s 16A(2)(j) — extent of offender’s radicalisation during commission of offence relevant to assessment of objective seriousness of the offence — fact of offenders’ involvement in offences is ‘clear and cogent evidence’ offenders were strongly radicalised at time of offences — offender’s steps taken towards de-radicalisation after commission of offence relevant to specific deterrence and prospects of rehabilitation — little weight given to extent of offender’s de-radicalisation in absence of sworn evidence — material tendered on behalf of offenders ‘unconvincing, contrived and self-serving’ — public renunciation of IS, whether genuine or not, taken into account in favour of offenders as renunciation represents public statement that two followers reject ideology of criminal organisation — sentence — degree of concurrency necessary but significant cumulation required to reflect separate criminality involved in two offences — Mohamed and Chaarani sentenced to 22 years’ imprisonment with 17 year non-parole period — Moukhaiber sentenced to 16 years’ imprisonment with 12 year non-parole period
  • 19 July 2019 —

    R v Frias [2019] NSWDC 365 — drug importation — objective seriousness — antecedents — guilty plea — co-operation — rehabilitation

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    sentence — imported a commercial quantity of a border controlled drug offence contrary to s 307.1(1) of Commonwealth Criminal Code — offence relates to 15.8744kg of methamphetamine — objective seriousness — role of offender is that of a courier — offender not at top of hierarchy and was in position that exposed her to detection — offending at midrange of objective seriousness — antecedents — s 16A(2)(m) — offender is Mexican citizen and may be subject to linguistic and cultural differences in prison but no evidence on balance of probabilities that imprisonment harsher for her than ordinary prisoner — fact offender did not come to Australia for purpose of offending and will be unusually isolated in prison taken into account but accorded little weight — guilty plea — s 16A(2)(g) — entitled to 25% discount — co-operation — s 16A(2)(h) — offender provided assistance of medium value and discount of 15% allowed — rehabilitation — s 16A(2)(n) — offender has excellent prospects of rehabilitation and demonstrated as much during time in custody to date through positive attitude exhibited in gaol, employment in prison and assistance rendered to others whilst in custody — offender has abstained from drugs whilst in gaol — sentence — sentence imposed 7 years’, 2 months and 12 days imprisonment with four year and ten month non-parole period
  • 19 July 2019 —

    R v Thomas [2019] NSWDC 364 — drug importation — objective seriousness — specific deterrence — guilty plea — contrition — rehabilitation

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    sentence — aid and abet an attempt to possess a commercial quantity of an unlawfully imported border controlled drug offence contrary to s 11.2(1) and 307.5(1) of Commonwealth Criminal Code — offence relates to 15.8744kg of methamphetamine — objective seriousness — the offence is very serious — offender’s involvement peripheral and role considerably less than that of a courier —no role other than brief and non-integral assistance provided to their romantic partner over a short period — offender had no expectation of any financial reward — took no steps at all to disguise limited participation, used own phone and was seen on CCTV — sentencing judge found offender’s role in offence placed them at the very low end on the scale of objective seriousness — specific deterrence — s 16A(2)(j) — personal deterrence has little work to do in present case as offender will soon be completely rehabilitated  — offender’s ‘very specific perceptive factor’ that relationship with co-offender has come to an end so that in this unusual case specific deterrence need play no role in sentencing exercise — guilty plea — s 16A(2)(g) — plea entered at earliest opportunity, so a discount of 25% appropriate in the circumstances — contrition — s 16A(2)(f) — offender not sought to blame others or to minimise her conduct — sentencing judge found offender genuinely contrite and remorseful — sentencing judge found offender has significant insight into offending and its effect on their family, themselves and the community — rehabilitation — s 16A(2)(n) — sentencing judge satisfied offender will shortly be completely rehabilitated — sentence — atypical and exceptional case — 2 years’ imprisonment, to be served by way of Intensive Correction Order
  • 17 July 2019 —

    Cluett v The Queen [2019] WASCA 111 — child exploitation offences — antecedents — nature and circumstances of the offence — general deterrence — specific deterrence — hardship to the offender

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    appeal against sentence — 2 counts of using a carriage service to access child exploitation material offences contrary to s 474.19(1)(a)(i) of Commonwealth Criminal Code — state offence — original sentence imposed 9 months’ imprisonment, with a recognizance release order providing for offender to be released after serving 6 months and 1 day — a number of unusual circumstances combine to make this one of the exceptional cases which does not require imposition of generally appropriate type of sentence for the offences — antecedents — s 16A(2)(m) — nature and circumstances of the offence — s 16A(2)(a) — general deterrence  — s 16A(2)(ja) — number of images possessed or accessed much lower than ordinarily features in cases of this kind — offender’s viewing of material was not motivated by a sexual attraction towards children — not a case which is aggravated by offender paying to access pornography, or participating in forums or other communications which promote the dissemination and production of child exploitation material — must be emphasised that absence of aggravating features does not make this a victimless crime — offender 63 year old man at time of sentence without any relevant criminal record — non-drug induced mental impairment which has causal relationship to offence can impact on considerations of personal and general deterrence, in addition to reducing the moral culpability of the offender — offender’s autism spectrum disorder was contributing factor to offending, reduces both offender’s moral culpability and significance of general deterrence as sentencing consideration —  specific deterrence — s 16A(2)(j) — personal deterrence as sentencing factor significantly reduced by psychologist and psychiatrist’s view of future risk of offending — hardship to the offender — symptoms of offender’s autism spectrum disorder mean imprisonment would be much more onerous for offender than ordinary prisoner — difficulty in interacting with others make it harder for offender to cope within the prison regime, while eccentricities which are manifestation of that disorder are likely to make offender target for bullying — resentence — offender released under a recognisance release order for commonwealth offences and a suspended imprisonment order for the state offence
  • 9 July 2019 —

    DPP v Abdallah [2019] VCC 1030 — tobacco possession and procurement offences — objective seriousness — general deterrence — specific deterrence — rehabilitation — contrition

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    sentence — intentionally possess tobacco leaf without licence and permission contrary to s 117C(1) of Excise Act 1901 (Cth), procure another to move tobacco leaf without permission, contrary to s 11.3 of Commonwealth Criminal Code (Cth) and s 117D(1) of Excise Act 1901 (Cth), dishonestly cause a risk of a loss to the Commonwealth contrary to s 135.1(5) of Commonwealth Criminal Code (Cth) — offences relate to 1110 kilograms of tobacco leaf — objective seriousness — while maximum penalty for charges 1 and 2 is 2 years’ imprisonment, it is clear offence is viewed as serious given amount of tobacco in possession — charge 3 involved criminal conduct over a period of 11 months following the first 2 charges — offending involved two properties and was organised and well resourced — potential loss of excise to Commonwealth substantial — offending represents serious offending against Commonwealth — general deterrence — s 16A(2)(ja) — general deterrence the paramount sentencing consideration — particularly significant sentencing consideration in white collar crime and that good character cannot be given undue significance as a mitigating factor and plays a lesser part in the sentencing process — in taxation offences, general deterrence also given special emphasis in order to protect revenue as such crimes are not particularly easy to detect and if undetected may produce great rewards — “deterrence looms large as present process of self-assessment reposes on the taxpayer a heavy duty of honesty” — specific deterrence — s 16A(2)(j) — rehabilitation — s 16A(2)(n) — this principle should carry less weight as minimal prior history not of direct relevance and offender involved in offending in desperate circumstances when offending — low risk of reoffending and sentencing judge views prospects of rehabilitation as very strong — contrition — s 16A(2)(f) — while genuine remorse in relation to these types of charges can be an elusive concept, sentencing judge accepted that offender had some insight into offending behaviour — sentence imposed 2 years’ and 6 months imprisonment offender released upon recognisance of $2,000 to be of good behaviour for 4 years
  • 3 July 2019 —

    R v Walker [2019] ACTSC 172 — child exploitation — guilty plea — objective seriousness — general deterrence — rehabilitation

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    sentence — use of carriage service to solicit and distribute child pornography offences contrary to s 474.19(1) of Commonwealth Criminal Code — state offence — guilty plea — s 16A(2)(g) — regardless of whether utilitarian value is to be taken into account, offender accepted responsibility and expressed remorse more or less from the outset — pleas of guilty reinforced that acceptance — with or without reliance on utilitarian value, in circumstances of case sentencing judge would allow discount of 25% for commonwealth charges — objective seriousness — purpose of distribution was to corrupt vulnerable children — it may be readily inferred that harm was substantial — general deterrence — s 16A(2)(ja) — general deterrence usually primary sentencing consideration for offending that involves child pornography — offending is difficult to detect, and poses a great and growing threat to community — protection of community is critical sentencing purpose — high public interest in protecting children from exploitation and corruption — rehabilitation — s 16A(2)(n) — given offenders age, appreciation of wrongdoing and fact that offender was subject of child sexual abuse for which now seeking treatment and may well be related to the offending behaviour, rehabilitation is very important sentencing consideration — sentence imposed 18 months’ imprisonment, to be served by way of intensive correction order
  • 14 June 2019 —

    R v Taleb (No 5) [2019] NSWSC 720 — preparatory foreign incursion offence — nature and circumstances of the offence — mental condition — general deterrence — rehabilitation — offender’s family and dependants — recognizance release order

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    sentence — engaging in conduct preparatory to committing a foreign incursion offence contrary to s 119.4 of Commonwealth Criminal Code nature and circumstances of the offence — s 16A(2)(a) — entrapment — may be mitigating factor at common law — most of offender’s actions undertaken due to encouragement and incitement of undercover police officer — little prospect offender could have travelled to Syria without officer’s assistance — offender had no contact with Islamic State apart from subscription to propaganda channels — offending towards lower range of seriousness — mental condition — s 16A(2)(m) — offender suffered from schizophrenia during offending and while in custody — mental illness played significant role in offending — application of R v Israil [2002] NSWCCA 255 and DPP (Cth) v De La Rosa [2010] NSWCCA 194 where mental illness has significant impact on moral culpability — mental illness caused offender to be isolated and increased vulnerability to religious ideas and extremist ideology — contrition — s 16A(2)(f) — being respectful during court proceedings and describing Islamic State as ‘terrorist organisation’ not evidence of contrition — offender making ‘one finger salute’ sign of ISIS after verdict supports finding of no contrition — specific deterrence — s 16A(2)(j) — general deterrence — s 16A(2)(ja) — rehabilitation — s 16A(2)(n) — offender’s mental illness made offender inappropriate vehicle for a sentence where ‘significant or undue weight is afforded to principle of general deterrence’ — good prospects of rehabilitation with lengthy period of supervision and adequate psychiatric intervention and treatment — offender’s family or dependants — s 16A(2)(p) — circumstances of offender’s mother’s ill health do not give rise to ‘exceptional hardship’ — consideration of dissent in R v Zerafa [2013] NSWCCA 222 and Elshani v The Queen [2015] NSWCCA 254 — offender was primary caregiver for mother suffering from multiple sclerosis and quadriplegia — mother became permanent resident at aged care facility as a result of offender’s incarceration — hardship on offender’s mother not a matter that can be taken into account in determining whether custodial sentence appropriate — sentence — s 19AG does not mandate that offences which fall within its terms will necessarily result in sentence of imprisonment — most effective way of achieving community protection is to impose penalty that fosters offender’s rehabilitation — incarceration likely to be anti-therapeutic in terms of offender’s mental illness — long period of supervision required to ensure compliance with counselling and medication regimes — application of s 19AG would result in inadequate length of supervised parole period — prior two years’ in custody sufficient punishment — no sentence imposed — 5 year recognisance release order imposed pursuant to s 20(1)(a)
  • 5 June 2019 —

    R v Shoma [2019] VSC 367 — engaging in a terrorist act offence — victim of the offence — nature and circumstances of the offence — deportation

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    sentence — engaging in a terrorist act offence contrary to s 101.1(1) of Commonwealth Criminal Code — offender stabbed victim in neck with kitchen knife, resulting in physical injury — attack occurred in victim’s home where victim was homestay host for offender —victim impact statements — ss 16AB, 16A(2)(ea) — victim impact statements received by court from victim and victim’s wife — victim’s 5 year old daughter witness attack — victim suffers from constant physical pain and post-traumatic stress disorder — distress at watching daughter suffer flashbacks, severe nightmares and night sweats — sentencing terrorism offences — body of case law concerning preparatory offences is apposite to intentionally engaging in terrorist act offences — no clear binary division of objective seriousness between terrorist act done in public than act done in private — fact that no adult witnesses to attack does not necessarily make offending less serious than potential lone wolf attack in public — attack violated legitimate expectation that everyone should be and feel safe in their home — number of intended or actual victims are not determinative of assessment of objective seriousness — irrespective of number of immediate victims, assessment of harm must necessarily take into consideration harm done to Australian public and Australian polity — fact that terrorist act was completed rather than contemplated relevant to assessment of gravity of offending and moral culpability of the offender — nature and circumstances of offence — s16A(2)(a) — offender entered study program from Bangladesh to Australia with ‘sole purpose’ of carrying out terrorist act — bringing large kitchen knife from Bangladesh and carrying out attack within 8 days of arriving in Australia demonstrates seriousness of offending — offender chose weapon that could be brought into Australia without detection, and a mode of attack that could be executed with speed and scant preparation — guilty plea — s 16A(2)(g) — rehabilitation — s 16A(2)(n) — offender’s early plea of guilty has utilitarian value — full, frank and immediate admission does not demonstrate good prospects of rehabilitation as admissions made because offender was proud of her actions ‘believing them to be those of a martyr’ — deportation — offender did not demonstrate that deportation after release from custody will result in hardship — ‘scant evidence’ that offender would be at risk of extra-judicial punishment upon return to Bangladesh — sentence — offender sentenced to 42 years’ imprisonment with a 31 year and 6 month non-parole period
  • 5 June 2019 —

    R v Khan (No 11) [2019] NSWSC 594 — engaging in a terrorist act offence — victim of the offence — nature and circumstances of the offence — rehabilitation — contrition — mental condition — general deterrence

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    sentence — engaging in a terrorist act offence contrary to s 101.1(1) of Commonwealth Criminal Code — offender repeatedly stabbed victim with hunting knife, resulting in physical injury — victim of the offence — s 16A(2)(ea) — victim impact statements — whether ‘victim of the offence’ includes witnesses to stabbing attack — distinguished from R v Nahlous [2013] NSWCCA 90 where the family of a groomed child was not considered a victim of the offence — while effect of offending most profound on victim stabbed, offending had impact on those who witnessed aspects of offending, actively intervened to assist stabbed victim, and felt threat to personal safety as consequence of offending — nature and circumstances of the offence — s 16A(2)(a) — offending not spontaneous, attack planned to be commissioned on or near anniversary of September 11 — offender sought to obtain international recognition of offending — offender’s radicalisation relevant to assessment of objective seriousness — would be wrong in principle to sentence offender by drawing comparison between offence and attempted murder — offender’s religious and ideological motivation, and intention to intimidate government distinguish offender’s acts from offences against the person — fact that offending of greater gravity or with multiple victims may be envisaged, does not mean present offending was not serious — above mid-range of objective seriousness — rehabilitation — s 16A(2)(n) — contrition — s 16A(2)(f) — offender’s prospects of rehabilitation largely dependent upon ‘complete and unconditional abandonment’ of extremist ideology held at time of offending — offender admitted lying to medical practitioners in hope that jury would fine him not guilty on grounds of mental illness — fact that offender’s ideology was the subject of offender’s lies, means little weight can be given to claims that offender has now abandoned ideology — mental condition — s 16A(2)(m) — general deterrence — s 16A(2)(ja) — offender suffers from schizophrenia and/or OCD — no causal connection to offending — fact that offender has mental illness must have some onerous effect on conditions of custody — general deterrence remains relevant and is not significantly moderated by mental health considerations given nature of offending — sentence — offender sentenced to 36 years’ imprisonment with a 27 year non-parole period
  • 29 May 2019 —

    R v Turner [2019] NSWDC 206 — child exploitation offence — objective seriousness — antecedents — general deterrence — specific deterrence — rehabilitation — contrition

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    sentence — use of carriage service to transmit indecent material to person under age of 16 years offence contrary to s 474.27A(1) of Commonwealth Criminal Code guilty plea — offender indicated pleas of guilty at earliest opportunity and should be afforded consideration for facilitating the course of justice taking into account utilitarian value — offender afforded 25% discount for plea of guilty — objective seriousness — victim 15 years of age and offender 35 years of age at time of offending — victim’s age very much towards upper end of age range contemplated by offence — this does not make matter less serious, rather matter would be more serious if victim was younger — while clear there was a sexual motive behind message, sentencing judge could not regard it as grooming type behaviour — pre-planning (obtaining material, retaining it and finding victim on Facebook) and nature of material being video of actual activity rather than “chats” — video seen by two victims in that one of victim’s friends also saw part of the material — matter well within mid-range of seriousness — antecedents — s 16A(2)(m) — while criminal history of offender not particularly extensive, history is such that offender not entitled to any particular leniency — uncontroversial that fact offence committed while offender at conditional liberty is a matter of aggravation — offender has been assaulted on two occasions in response to offending — sentencing judge prepared to find some extra curial punishment however impact on sentence to be imposed is not in any way significant — specific deterrence — s 16A(2)(j) — rehabilitation — s 16A(2)(n) — given offender’s record and breaches of bonds taken with fact that there has already been attempts at rehabilitation, cannot find on balance offender unlikely to re-offend — in all circumstances, noting two previous attempts at rehabilitation and admitted use of illicit substances sentencing judge not prepared to find on balance good prospects of rehabilitation — much will depend on how offender engages with appropriate professionals — SAR assessed as medium risk of reoffending — given this assessment and breach of conditional liberty court cannot conclude on balance offender unlikely to reoffend — contrition — s 16A(2)(f) — offender has good level of insight into trauma and distress offence caused and appears genuine — offender is remorseful and has shown genuine contrition — offender has accepted responsibility for what they did and acknowledges that it was entirely inappropriate — degree to which offender shown contrition is difficult to quantify but in circumstances of case, noting victim was in court at time offender gave evidence, there is little more offender could do — sentence imposed 12 months’ imprisonment — offender to be released on recognizance after 4 months for remaining period of 8 months
  • 24 May 2019 —

    IM v The Queen [2019] NSWCCA 107 — preparatory terrorism offence — guilty plea — rehabilitation — contrition

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    appeal against sentence — conspiracy to commit preparatory terrorism act offence contrary to ss 11.5 and 101.6(1) of Commonwealth Criminal Code — original sentence imposed 13 years and 6 months imprisonment — offender aged 14 years and 2 months at time of offence — guilty plea — s 16A(2)(g) — application of Xiao v The Queen [2018] NSWCCA 4 — sentencing judge in error by not having regard to utilitarian value of offender’s guilty plea — plea will be of limited benefit when entered on first day of trial — discount of 10% granted — rehabilitation — s 16A(2)(n) — contrition — s 16A(2)(f) — despite offender not giving evidence in court of renunciation of extremist beliefs held at time of offending, sentencing judge correct in assessing offender’s prospects of rehabilitation as favourable — sentencing judge correct in considering offender’s supportive family, developing maturity and unqualified acceptance ‘that what he did was seriously wrong’ as relevant to prospects of rehabilitation — appeal allowed — offender resentenced to 10 years’ and 9 months imprisonment with 8 year non-parole period — sentence to be served as juvenile offender up to offender attaining 21 years of age
  • 24 May 2019 —

    R v Jones [2019] QDC 79 — flying without a license — guilty plea — antecedents — age — general deterrence — s 19B — objective seriousness

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    sentence — 5 counts of operating Australian aircraft without a license offence contrary to s 20AB of Civil Aviation Act 1988 (Cth) and 1 count of making a false commonwealth document offence contrary to s 144.1 of Commonwealth Criminal Code — one count of providing a false or misleading information to the Civil Aviation Authority (CASA) contrary to s 135.1(7) of Commonwealth Criminal Code taken into account pursuant to s 16BA — guilty plea — s 16A(2)(g) — guilty pleas show cooperation in administration of justice and have saved the cost of a trial — antecedents age — s 16A(2)(m) — unusual feature of this case is offender held US Commercial Pilot’s Licence license and an Australian Private Pilot’s Licence — offender young at the time (22 to 24 at time of offending) with family pressures on offender concerning career — incidents of poor flying appear to have occurred some time ago and offender flown many hours since — general deterrence — deterrence is an important sentencing consideration for these charges — CASA is charged with safety of our airways and it is crucial that people be appropriately licensed when flying aircraft — there are real dangers involved with agricultural flying e.g. wirestrikes —false document charge serious as CASA has important responsibilities and it is important that persons not be deceitful to CASA — s 19B — despite offender’s otherwise good character and antecedents not appropriate case for s 19B bond in light of number of charges and hours flown when offender knew they were not authorised — objective seriousness —offences not trivial or committed under extenuating circumstances — not an isolated event offending involved a lot of flying and making a false document — offender knew they were not entitled to fly for reward without an Australian Commercial Pilot’s Licence — false document charge more serious, as some degree of planning and deception involved — sentence imposed — 6 months’ imprisonment and $2000 fine — offender released on recognizance for 2 years
  • 24 May 2019 —

    Turnbull v The Queen [2019] NSWCCA 97 — use of carriage service offences — objective seriousness — antecedents — rehabilitation — contrition

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    appeal against sentence — two counts of using a carriage service to threaten to kill offences contrary to s 474.15(1) of Commonwealth Criminal Code — further offence of using carriage service to menace/harass/offend taken into account pursuant to s 16BA — state offences — original sentence imposed 5 years’ imprisonment with 3 year and 6 month non-parole period — offender on parole from previous offences but parole revoked and offender remained at large, present offences committed after parole revoked — objective seriousness — objective criminality was grave and persistent — sentencing judge erred in treating commission of an offence while on conditional liberty as aggravating objective seriousness of offence — no material error demonstrated in this respect — as that finding could only impact indicative sentence in relation to one of the numerous State offences in relation to which sentencing judge imposing aggregate sentence of 4 years with 3 year non-parole period, it had no impact on selection of aggregate sentence for Commonwealth offences — error was all but inconsequential — but cannot be said with confidence it did not affect exercise of sentencing discretion — it must have had (although minimal) bearing on overall assessment of totality of applicant’s conduct and determination of aggregate sentence in relation to State offences —  where error established the duty of the Court to exercise an independent sentencing discretion not discharged merely by adopting the sentence imposed at first instance and concluding that “no lesser sentence is warranted in law” — Court must exercise independent sentencing discretion — antecedents — s 16A(2)(m) — some evidence concerning offender’s personal circumstances that ameliorates culpability — had troubled early life, difficulties in relationship with parents, added to hospital for psychiatric care following termination of relationship with complainant, diagnosed as suffering from depression and anxiety — rehabilitation — s 16A(2)(n) — contrition — s 16A(2)(f) — former policeman friend offered offender home on release — generous offer affords some, unquantifiable, optimism for rehabilitation — offender’s post sentencing affidavit (admitted for purpose of resentencing) asserted that offender “appalled and ashamed” — not possible to make any assessment of genuineness of assertions nor realistic prospect of signalling change — cannot be overlooked offences were not first of their kind offender nor that offender served term of imprisonment for offences of the kind — appropriate to take into account expressions of regret and good intentions — resentence — the sentences the Court would impose exceed the sentence imposed at first instance — since the indicative sentence and aggregate sentences the court would impose are lengthier it is appropriate not to disturb the sentence as was acknowledged in Kentwell
  • 22 May 2019 —

    R v KB [2019] ACTSC 136 — child exploitation offences — objective seriousness — contrition — guilty plea — delay — rehabilitation

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    sentence — one count of using a carriage service to access child pornography contrary to s 474.19(1)(a)(i) of the Commonwealth Criminal Code and one count of using a carriage service to transmit child pornography contrary to s 474.19(1)(a)(iii) of Commonwealth Criminal Code objective seriousness — offence 1 objectively very serious matter involving 490 images, including 84 images in categories 4 and 5 — it was significant that there are a number of different children and this offence was committed over a period of more than 3 years — accessing such material online contributes to sustaining a market for appalling material — offence 2 objectively very serious, containing images of a high level and depravity and relevantly involved transmission to up to 57 people — contrition — s 16A(2)(f) — offender agreed with statement of facts for current offences and claimed full responsibility for his actions — offender is clearly remorseful — guilty plea — s 16A(2)(g) — conflict between ACT decision of Harrington and decisions in Victoria and New South Wales — sentencing judge bound by decision in Harrington — this conflict in authorities will need to be resolved by ACT Court of Appeal — 25% discount for pleas of guilty taking into account offender’s remorse, acceptance of responsibility and willingness to facilitate the course of justice — delay — case was delayed for 9 months and 21 days due to collecting foreign evidence — delay was not the kind which itself warranted a mitigating impact on sentence, not being undue, unwarranted or inordinate and impact on offender’s rehabilitation is minimal — rehabilitation — s 16A(2)(n) — rehabilitation is an important consideration having regard to offender’s engagement with psychologists on issues related to the current offences and medical evidence regarding specialist rehabilitation in community — offender’s guilty plea, remorse, suitability for ICO, evidence-based therapy currently undertaking successfully and consequent significant prospects for rehabilitation, point in direction other than term of imprisonment served by way of fulltime custody — sentence imposed — 3 years’ imprisonment served by way of intensive corrections order
  • 14 May 2019 —

    DPP (Cth) v Munro [2019] VSCA 89 — firearm importation offences — objective seriousness — general deterrence — manifest inadequacy

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    appeal against sentence — 4 counts of importing Tier 2 goods contrary to s 233BAB(5) and 2 counts of attempted importation of firearms with intention of trafficking contrary to ss 11.1(1) and 361.2 of Commonwealth Criminal Code — offences related to importation of 12 fully automatic machine guns, with attempt to import 6 further machine guns, and importation and attempted importation of semi-automatic handguns — original sentence imposed 10 years’ and 3 months imprisonment with 6 year non-parole period — objective seriousness — importation of weapons very serious — importing fully automatic machine gun, which can fire 1,000 rounds of ammunition per minute, at highest end of range of seriousness — when charge concerns multiple guns, objective seriousness is higher again — presence of guns of this kind in our community creates risk of danger to community which is grave and long-lasting — such weapons can remain in circulation for years after importation leaving risk of large-scale death and injury undiminished — firearms imported where firearms which had no lawful use and there was evidence before sentencing court of their having been used in connection with serious criminal activity — general deterrence — s 16A(2)(ja) — general deterrence is, self-evidently, a consideration of the highest importance for offending of this kind — the sentence to be imposed had to signal to those involved in unlawfully introducing firearms into Australia for profit that the potential substantial financial rewards to be gained are neutralised by the risk of severe punishment — manifest inadequacy — over period of 3.5 years, offender engaged in persistent, planned, sophisticated offending to bring into Australia mass killing machines the only purpose of which was their use in the threatened or actual taking of human life — total effective sentence and non-parole period are well below what was required to reflect the aggregate criminality of the offending — appeal allowed —  offender resentenced to 15 years’ imprisonment with 11 year non-parole period
  • 7 May 2019 —

    R v Lelikan (No 5) [2019] NSWSC 494 — membership of terrorist organisation offence — nature and circumstances of offence — antecedents

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    sentence — membership of a terrorist organisation offence contrary to s 102.3(1) of Commonwealth Criminal Codenature and circumstances of offence — s 16A(2)(a) — application of Benbrika v The Queen [2010] VSCA 281 where nature of terrorist organisation relevant to assessment of objective seriousness of offence and moral culpability of offender — fact that group is a specified terrorist organisation is an element of the offence cannot, of itself, inform the seriousness of the offence — process of Minister listing and re-listing terrorist organisations goes to objective seriousness, due to the broad range of organisations that may be specified — must undertake evaluative judgment of nature of acts committed by PKK and underpinning ideology — while PKK has continuously been relisted because it meets broad statutory threshold in s 102.1 of Commonwealth Criminal Code does not amount to determination that PKK is a threat to Australian security — PKK ideology more in common with values of democracy than extremist violent jihad — while support for terrorism is inherently serious, ‘the ideal of self-determination espoused by the PKK is not the most dangerous ideal of our times’ — lowest order of seriousness — antecedents — s 16A(2)(m) — offender’s moral culpability significantly reduced as informal membership innately connected to personal trauma and intergenerational persecution — offender did not engage in any hostile activity — involvement was that of passive, sympathetic observer who sought to chronicle their struggle — satisfied that offender renounced all violent or criminal forms of support for PKK — sympathy and support offender retains may be viewed ‘benignly when understood through the lens of his personal background’ — sentence — imposition of custodial sentence not warranted — offender sentenced to 3 year community correction order (CCO) pursuant to s 8(1) of Crimes (Sentencing Procedure) Act 1999 (NSW)
  • 6 May 2019 —

    Foley v The Queen [2019] VSCA 99 — attempted drug possession — deportation

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    appeal against sentence — attempting to possess commercial quantity of unlawfully imported border controlled drug — original sentence imposed 7 years’ and 6 months imprisonment with 5 year non-parole period — deportation — offender submitted sentencing discretion miscarried as a consequence of the fact, and implications, of the offender’s inevitable deportation upon completion of sentence — as counsel having mentioned likelihood of deportation and sentencing judge noted offender ‘will be deported’, it is unlikely that judge failed to take well-known consequences of prospect of deportation into account — must be recognised when considering that the prospect of deportation, applicant’s service of sentence in ‘foreign’ country and that offender may not be able to receive visits from partner, it is significant that offender will neither be imprisoned in environment with entirely alien culture and language nor be liable upon completion of sentence to be deported to dangerous, hostile or unknown country — leave to appeal against sentence refused
  • 6 May 2019 —

    R v Abbas [2019] WASCA 64 — people smuggling offences — objective seriousness — rehabilitation — character — manifest inadequacy

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    appeal against sentence — 2 counts of facilitating the bringing or coming to Australia of a group of at least 5 persons, who were non-citizens and who travelled to Australia without a visa that was in effect, and that the offender did so reckless as to whether those persons had a lawful right to come to Australia offences contrary to s 232A(1) of the Migration Act 1958 (Cth) — 1 count of organising or facilitating the bringing or coming to Australia of a group of at least 5 persons who were non-citizens and who had no lawful right to come to Australia, and the offender did so reckless as to whether those persons had a lawful right to come to Australia offence contrary to s 233C(1) of the Migration Act — 24 counts of people smuggling offences in the alternative — original sentence imposed 12 years’ imprisonment with a 7 year 3 month non-parole period — objective seriousness — maximum penalty and mandatory minimum penalty dictate seriousness of offence — 2 counts under s 232A(1) are very serious — 1 count under s 233C(1) more egregious — repeat offence and boat used significantly larger with about twice the number of passengers than boats used on the first 2 counts — apparent offender capable and efficient organiser or facilitator in people smuggling industry — role in hierarchy of culpability higher than role occupied by captain or crew member of boat who does not have any role in people smuggling other than directing or assisting boat operation — rehabilitation — s 16A(2)(n) — difficult to make assessment of prospects of rehabilitation — offender’s literacy skills are poor and offender has only basic grasp of English language — offender not prepared to complete any prison-based programs because offender likely to be deported to Afghanistan upon release from custody — if deported, offender will be socially isolated — prospects of rehabilitation are uncertain — character — criminal history in Indonesia and sentence imposed on offender in Indonesia may not have achieved purposes for which it was imposed did not aggravate seriousness of offending — however criminal history indicated offender not entitled to leniency on ground of ordinarily good character — manifest inadequacy — alleging sentence manifestly inadequate asserts existence of implied error — necessary in determining whether sentence manifestly inadequate, to examine it from perspective of maximum penalty for offence, standards of sentencing customary observed for offence, place which criminal conduct occupies on scale of seriousness of offences of kind in question, and personal circumstances of the offender — individual sentences for each count not of severity appropriate — each individual sentence imposed on respondent (before application of totality principle) merely one year in excess of mandatory minimum penalty notwithstanding that offending in relation to each offence significantly worse than least serious category of offending — individual sentences and minimum non-parole period unreasonably or plainly unjust, not merely lenient or at lower end of available range — resentence — sentence imposed 14 years’ imprisonment with a 9 year non-parole period
  • 3 May 2019 —

    R v Cerantonio & Ors [2019] VSC 284 — preparatory foreign incursion offences — nature and circumstances of the offence — rehabilitation — contrition — youth

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    sentence — conduct in preparation for engaging in hostile activity offences contrary to s 119.4(1) of Commonwealth Criminal Code — six offenders — five offenders travelled by car from Victoria to Queensland with intention of travelling by boat to Philippines with purpose of overthrowing Filipino government — one offender remained in Victoria — rationale for sentencing foreign incursion offences — characterisation of purposes for preparatory foreign incursion offences in R v Mohamed [2016] VSC 581 applicable to new provisions of Part 5.5 including s 119.4 — Commonwealth Parliament has criminalised behaviour of engaging in and preparation for engaging in foreign hostilities pursuant to Australia’s international obligations — criminalising preparatory conduct which is ‘breathtakingly stupid’ and certain to fail, within purpose of legislation — nature and circumstances of the offence — s 16A(2)(a) — attempting to overthrow government by force or violence involves high moral culpability — Cerantonio bears much greater moral culpability than other offenders as did ‘all he could’ to confirm, enhance or persuade pre-existing extremist views of other offenders — gravity of offence will be lessened where whole venture ‘poorly planned’, offenders were unlikely to reach the Philippines, no plan for how the government would be overthrown, and no suggestion any offenders would be personally engaged in violence — rehabilitation — s 16A(2)(n) — contrition — s 16A(2)(f) — renunciation of extremist views may evidence rehabilitation and contrition — where offender does not give direct evidence in court of renunciation of extremist views, that the offender instructed counsel about details of renunciation ‘knowing that the world at large would be told that these are now his views’ is significant in itself — prospects of rehabilitation will be lowered where offender has long history of ‘extremist thinking’ — delay — delay of about two years and 9 months may amount to mitigating factor where offenders ‘use their time in custody wisely, to assist in their own reform’, and strain of not knowing outcome of case is ‘stressful experience’ — youth — s 16A(2)(m) — one offender aged 21 at time of offence — offender ‘more likely to be more impressionable and more susceptible’ to extremist views of Cerantonio due to being much younger than other offenders — however sentence length not decreased compared to other offenders — sentence — Dacre, Granata and K Kaya sentenced to 4 years’ imprisonment with 3 year non-parole period — M Kaya sentenced to 3 years and 8 months’ imprisonment with 2 year 9 month non-parole period — Thorne sentenced to 3 years and 10 months’ imprisonment with 2 year and 10 month non-parole period — Cerantonio sentenced to 7 years’ imprisonment with 5 year and 3 month non-parole period
  • 2 May 2019 —

    R v Hudson [2019] ACTSC 110 — use of carriage service offences — guilty plea — objective seriousness — rehabilitation

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    sentence — two counts of using carriage service in a way that reasonable persons would regard as being harassing towards another offences contrary to s 474.17(1) of Commonwealth Criminal Code — 5 counts of various state offences — 3 transferred summary state offences — Court also considered breach of good behaviour order for previous state offence — guilty plea — s16A(2)(g) — sentencing judge aware that different plea discount provisions apply to Territory and Commonwealth offences and that there is some controversy about whether utilitarian value of pleas should be considered in relation to Commonwealth offences — in this case, regardless of whether discount for Commonwealth offences is to be determined by reference to willingness to facilitate course of justice or utilitarian value, discount for all offences should be at the maximum 20% — there was significant utilitarian value to the pleas — objective seriousness — offender called outlaw motorcycle gang associates in aid, which would have considerably enhanced fear felt by victims — harassment count 1 of high objective seriousness extending over more than 2 months, involved repeated threats to kill pets, implied threats to victim’s new partner, threat to damage vehicle by arson — harassment count 2 of moderate objective seriousness — communications on two days and occurred in context of prior serious threats towards victim’s partner — rehabilitation — s 26A(2)(n) — sentencing judge sceptical about offender’s commitment to rehabilitation, but not prepared to dismiss the prospect — matter best assessed by parole authority when the time comes — sentence imposed 4 years’ and 2 months imprisonment with a 33 month non-parole period for Commonwealth and State offences
  • 1 May 2019 —

    R v El Jamal [2019] NSWDC 153 — attempting to possess unlawful drug offences — guilty plea — co-operation — hardship — delay — antecedents

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    sentence — attempting to possess a commercial quantity of an unlawfully imported border controlled drug offence contrary to ss 11.1 & 307.5(1) of Commonwealth Criminal Code — offence related to 3,771.5g pure methamphetamine — under s 16BA one offence of attempting to possess a marketable quantity of the unlawfully imported border controlled drug offence contrary ss 11.1 & 307.6(1) of Commonwealth Criminal Code taken into account — offence taken into account under s 16BA related to 643g of cocaine — guilty plea — s 16A(2)(g) — the fact of the plea that must be taken into account, not the state of mind or motivation of offender — guilty plea came early but sentencing proceedings took about 3 days longer — offender gained no advantage from contest; if they had it would have been unfair to deny them the full utilitarian value of their plea — long trial avoided but principal prosecution witness still had to be called and cross-examined — sentencing judge reduced otherwise appropriate sentence by 20% for guilty plea — co-operation — s 16A(2)(h) — encouragement given to those who provide assistance whatever offender’s motive, even self-interest — evidence offender is at some risk in custody and threats have been made to family members — retribution is unlikely, but cannot be entirely discounted — because of offender some dangerous things were able to be seized and this seizure contributed to protection of community — other exhibits reveal nothing that would warrant reduction in sentence, particularly given sentencing judges’ assessment of lack of offender’s credibility — nor is sentencing judge of opinion what was said was full or frank — hardship delay — offender spent whole of remand on most restrictive classification of protection, non-association with limited contact with other prisoners and limited access to work and programmes — delay not offender’s fault — custodial sentence may weigh more heavily on a person with a mental health condition than the theoretical average prisoner — prisons are inherently violent places — antecedents — s 16A(2)(m) — this offence not uncharacteristic aberration — demonstrates continuing disobedience towards the law — sentence — offender sentenced to 14 years’ imprisonment with of 9 year and 8 month non-parole period
  • 23 April 2019 —

    R v Medalian [2019] SASCFC 40 — smuggling offence — manifest inadequacy — state sentencing practice — objective seriousness

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    appeal against sentence — smuggling tobacco with intent to defraud the revenue offence contrary to s 233BABAD(1) of Customs Act 1901 (Cth) — offence related to 1,080 kilograms of molasses tobacco with approximate payable duty of $725,414.40 — original sentence imposed 1 year and 9 months’ imprisonment, with offender serving 9 months imprisonment on a home detention order before release on recognizance release order to be of good behaviour for 12 months — manifest inadequacy state sentencing practice — offender sentenced to 2 years’ imprisonment which sentencing judge reduced by “10% reduction and a bit of rounding down of the sentence” for guilty plea to 1 year and 9 months — since hearing of this appeal, Court handed down decision in R v Tran the Court held that sentencing judge not empowered to order that only part of sentence of imprisonment be served on a home detention order and that thereafter the prisoner be released on a recognizance release order to be of good behaviour — s 71 of Sentencing Act (SA) prescribes Court’s power to issue home detention order and s 71(1)(b) precludes making of home detention order where sentence is partially suspended — the corresponding Commonwealth sentencing disposition to a suspended sentence under s 96 of the Sentencing Act is a recognizance release order under s 20(1)(b) of the Crimes Act — recognizance release order regime is exhaustive and leaves no scope for any State sentencing options to be imposed in addition to a recognizance release order — home detention orders and recognizance release orders are each standalone sentencing options — resentence — objective seriousness — the following matters are relevant to resentence: offender’s role as principal organiser, sophistication and period of offending, quantity of tobacco imported and amount of duty evaded, whether loss of revenue has been repaid, whether offending involved other illegalities like use of false identities, whether involved in distribution and sale of tobacco products within Australia and extent to which offender gained financially from offending — use of molasses tobacco not common in Australia — sentence to reflect serious nature of offending — offender resentenced to 2 years’ imprisonment reduced by 10% on account of guilty plea, resulting in sentence of 1 year, 9 months and 19 days imprisonment — offender has “served” 9 months on home detention order and complied with strict conditions — order offender be immediately released on recognizance release order for good behaviour for remainder of term of sentence
  • 10 April 2019 —

    Day v The Queen [2019] WASCA 60 — smuggling offence — manifest excess — objective seriousness

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    appeal on sentence — attempting to import tier 2 goods, namely multiple firearms and ammunition offence contrary to s 233BAB(5) of Customs Act 1901 (Cth) — dealing with money or other property with intent that it become an instrument of crime offence contrary to s 400.6(1) of Commonwealth Criminal Code — original sentence imposed 3 years’ and 6 months imprisonment with 2 year and 4 month non-parole period — manifest excess — if there are no directly comparable cases, an intermediate appellate court is not precluded from deciding that an individual sentence is manifestly excessive — it merely has the consequence that court has no directly comparable cases to provide a yardstick against which to measure sentence — previous sentencing ranges are only one pointer to the adequacy of a sentence — the authorities on sentencing where tier 2 goods are child pornography or abuse material are not comparable, and the principles which guided sentencing in those cases are not directly applicable — objective seriousness — guns can be used repeatedly and remain a lasting threat to public safety — factors relevant to assessing seriousness of offending include the number of firearms and quantity of ammunition, nature of firearms, including readily concealable and semi-automatic, and nature of ammunition, what offender intended to do with them (sell them on black market), offender’s motive of financial gain, degree to which importation was planned and the steps taken to disguise offending and avoid detection, and difficulty of detecting such offences — offender attempted to disguise offending using the Dark Web, encrypted transactions and emails, Bitcoin and anonymised payment mechanisms — attempted importation serious — offender has not demonstrated that non-parole period or its relation to head sentence is unreasonable or plainly unjust — leave granted — appeal dismissed
  • 10 April 2019 —

    McNiece v The Queen [2019] VSCA 78 — child exploitation offences —objective seriousness — manifest excess

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    appeal against sentence — 3 counts of using carriage service to solicit child pornography materials offences contrary to s 474.19(1), 3 counts of using carriage service to transmit indecent communication to a person under age of 16 offences contrary to s 474.27A(1), one count of procuring a child to engage in sexual activity outside of Australia offence contrary to s 272.14(1) — state offence — original sentence imposed 4 years’ and 10 months imprisonment with a 2 year and 2 month non-parole period — objective seriousness manifest excess — each case depends on nature of offending and circumstances of offender — consideration of facts of previous cases not that useful as range of offences for which law provides and ways in which those offences may be committed are so many and varied that comparison is often difficult if not meaningless — current sentencing practice is only one of the matters to be taken into account in sentencing — the sentence on the procuring a child overseas offence was manifestly excessive — no suggestion offender was seeking to procure sexual activity with himself or other adult, no inducement offered to take part in activity, no specific occasion was suggested or arranged where activity would take place, and offender did not disguise true identity or age — lower end of range of seriousness for this serious offence — while language used by offender debased and revolting, sentence of 2 years and 6 months imprisonment for encouraging 15 year old boy to engage in sexual activity with his girlfriend cannot be justified in this case — no aggravating feature of offender’s circumstances or antecedents that could justify unduly severe sentence — sentences on charges of soliciting child pornography or transmitting indecent communication were not manifestly excessive — serious offences and offending brazen and repeated — aggravating feature offender encouraging children to create child pornography not just soliciting transmission — re-sentence — will make sentence for State offence partly concurrent with sentences for Commonwealth offending, having regard to offender’s status as serious sexual offender and requirements of totality — sentence imposed 3 years’ imprisonment with a 1 year and 6 month non-parole period
  • 29 March 2019 —

    Klomfar v The Queen [2019] NSWCCA 61 — drug importation offence — parity — 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 relates to 4.653 kilograms of pure cocaine — original sentence imposed 7 years’ and 8 months imprisonment with a 5 year non-parole period — parity — co-offender sentenced to 6 years’ and 3 months imprisonment with 3 year and 6 month non-parole period as co-offender sentenced on basis that they were reckless as to the existence of drugs imported, displayed a lesser degree of criminality than offender, and the ‘extremity’ of co-offenders mental difficulties would make time in custody more onerous and reduce importance of general deterrence — no unjustified disparity — manifest excess — seriousness with which Parliament views offending reflected in maximum penalty of life imprisonment — characterising offender must never obscure assessment of what offender actually did — no inevitable correlation between offender in lower echelon of a hierarchy and severity of punishment — appeal dismissed
  • 29 March 2019 —

    R v Azari (No 12) [2019] NSWSC 314 — terrorism offence — nature and circumstances of offence — objective seriousness — age — delay — contrition — rehabilitation — s 16BA — general deterrence

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    sentence — attempting to make money available to terrorist organisation offence contrary to ss 11.1(1) and 102.6(1) of Commonwealth Criminal Code — act in preparation for, or planning, a terrorist act or acts offence contrary to s 101.6(1) of Commonwealth Criminal Code — funding offence related to $US9000 — nature and circumstances of offence — s 16A(2)(a) — telephone conversation with most senior Australian Islamic State member in Syria — contents of phone call included discussion of role that offender and others would play in series of public executions planned to be conducted in Australia — offender’s role with terrorist organisation as intermediary relevant to court’s assessment of nature and seriousness of offending — distinguished from most other acts of terrorism where “lone wolves” are usually radicalised online with no direct contact with Islamic State — objective seriousness — depth and extent of radicalisation of offender relevant factor in assessing objective gravity of planning offence — gravity of offence below mid-range as no evidence offender accessed any extremist material online and no evidence that offender had taken pledge of allegiance to Islamic State — age — s 16A(2)(m) — offender 20 years of age at time of arrest — youth will be given less weight due to seriousness of terrorism offences and absence of any causal link between offender’s age and criminal conduct — contrition — s 16A(2)(f) — contrition not shown as offender admitted he engaged in conduct knowing it was a crime  — offender argued religious obligations made Australian law subordinate — rehabilitation — s 16A(2)(n) — prospects of rehabilitation not established as no evidence offender renounced extremist views — offender’s refusal to stand in court does not suggest that offender has disavowed extremist views held at time of offences — taking into account other offences — s 16BA — two further counts of attempting to make money available to terrorist organisation offences contrary to s 102.6(1) of Commonwealth Criminal Code taken into account — amount totalling $6000 — general deterrence — s 16A(2)(ja) — general deterrence significant factor for these offences — community protection of paramount importance in terrorism sentencing due to fact that offences involve threat or use of violence as means to intimidate community or government, notwithstanding not explicitly listed in s 16A(2) — sentence — 25% discount for guilty plea for funding offence — period of 2 years’ concurrence between both sentences — sentence imposed 18 years’ imprisonment with a 13 year and 6 month non-parole period
  • 29 March 2019 —

    Gwardys v The Queen [2019] NSWCCA 62 — guilty plea

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    appeal against sentence — one count of importing a marketable quantity of a border controlled drug offence contrary to s 307.2(1) of the Commonwealth Criminal Code — offence relates to 391.7 grams of pure cocaine — original sentence imposed 6 years’ imprisonment with a 4 year non-parole period — guilty plea — s 16A(2)(g) — sentencing judge took guilty plea into account as indication of offender’s willingness to facilitate the course of justice but did not apply specific discount in recognition of plea or specifically refer to utilitarian value — error established — re-sentence — entitled to 25% discount to reflect utilitarian value of plea — no lesser sentence than that imposed by sentencing judge warranted — leave to appeal granted — appeal dismissed
  • 27 February 2019 —

    R v Roulston [2019] NSWDC 28 — child exploitation offence — objective seriousness — co-operation — rehabilitation

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    sentence — use of carriage service to groom a person under age of 16 years offence contrary to s 474.27(1) of Commonwealth Criminal Code — additional offence of use of carriage service to send indecent material to a person under 16 years of age pursuant to s 474.27A of Commonwealth Criminal Code taken into account on sentence — objective seriousness — offending occurred over short period of time — unsophisticated planning in that offender utilised own Facebook social media account — ceased contact of own accord — objective seriousness of offending towards lower range — conduct still constituted serious offending — transmitting indecent material does increase objective seriousness of offending and must amount to some accumulation on sentence — co-operation — s 16A(2)(h) — offender ceased conduct of own accord and did not respond when urged to do so when contacted by AOI — offender made certain admissions in interview following arrest — sentencing judge found offender cooperated with Law Enforcement Agencies in the face of overwhelming case — rehabilitation — s 16A(2)(n) — offender unable to articulate true reason for criminal offending and court must therefore be guarded in assessing whether offender has good prospects of rehabilitation — while offender assessed as low-average risk of sexual recidivism, little reliance can be placed on that assessment in absence of offender’s acknowledge of sexual interest in children, clearly evident in communications with AOI — any findings to rehabilitation would have to be somewhat guarded, however it would warrant them being given a substantial period of supervision in the community — sentence — sentence imposed 15 months’ imprisonment and a recognisance release order for 15 months after imprisonment
  • 18 February 2019 —

    DPP (Cth) v Ooi [2019] VCC 156 — drug importation offence — offender’s family and dependants — deportation

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    sentence — importing a marketable quantity of a border-controlled drug, namely heroin offence contrary to s 307.2(1) of Commonwealth Criminal Code — offence related to importation of 244 grams of pure heroin — offender part of syndicate with two other co-offenders — offender’s family and dependants — s 16A(2)(p) — offender’s wife is primary carer of all three children with only one relative in Australia who lives in Queensland — wife able to work part time when her mother assists her — mother lives in Vietnam and travels to Australia on a tourist visa but only able to stay for up to 3 months because of visa restrictions — sentencing judge took into account effect on offender of hardship caused to others by reason of offender’s imprisonment and imprisonment will be more burdensome for offender because of anguish offender will suffer at being unable to care for their family — deportation — having regard to offender’s migration status a term of imprisonment greater than 12 months will mean that offender will face mandatory cancellation of their visa with prospect of deportation being a real likelihood — whilst it is accepted that the court cannot speculate about whether the Minister will revoke the cancellation order, the real prospect of deportation is a relevant sentencing consideration on the basis of the additional anxiety that offender will suffer whilst undergoing term of imprisonment due to the existence of the risk of deportation — sentence imposed 3 years’ imprisonment to be released on a recognisance release order after serving 2 years
  • 14 February 2019 —

    R v Gillett [2019] ACTSC 30 — abuse of public office offence — contrition — character — delay — guilty plea — co-operation

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    sentence — abuse of public office offence contrary to s 142.2(1) of Commonwealth Criminal Code contrition — s 16A(2)(f) — sentencing judge accepted offender was remorseful as offender made full admissions to offences within hours of being initially investigated and pleaded guilty at earliest opportunity — offender accepts accountability for offence, and is embarrassed and ashamed by actions — character — s 16A(2)(M) — sentencing judge did not accord significant weight to offender’s otherwise good character as offence is frequently committed by those of otherwise good character — delay — offending occurred between August 2008 and March 2009 but not detected until 2016 — take into account only period of 18 months delay between offender in November 2016 making full admissions to his conduct and being summonsed before Court in June 2018 — no significant discount for delay between 2008-9 and 2016 given that delay was result of offending behaviour being kept hidden by offender, despite offender being required to report any misconduct — guilty plea — s 16A(2)(g) — discount of 25% is appropriate in light of offender’s willingness to facilitate course of justice — co-operation — s 16A(2)(h) — prosecution submitted past co-operation with overseas authorities may be considered by court under s 16A(2) as one of “any other matter[s]” — previous proceedings adjourned to allow offender to travel to United States to provide assistance to US Department of Justice in person in connection with ongoing prosecutions in a US Navy bribery matter — sentencing judge takes this past co-operation into account on sentence — offender gave undertaking in Court to attend and give evidence at any trial in the United States if subpoenaed and to co-operate in that process — sentencing judge gave a 15% discount in relation to undertaking to provide future co-operation — sentence — offender’s plea of guilty, remorse, suitability for an ICO, excellent prospects for rehabilitation and assistance to authorities point in direction other than imprisonment served by full time custody — sentence impose 23 months of imprisonment to be served by way of an Intensive Corrections Order pursuant to s 11 of the Crimes (Sentencing) Act 2005 (ACT) by way of s 20AB(1AA)(a)(ix) of Commonwealth Criminal Code — additional condition that offender perform 150 hours of community service within 23 months
  • 13 February 2019 —

    DPP v Nguyen [2019] VCC 108 — attempted drug possession — hardship — objective seriousness — general deterrence — rehabilitation

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    sentence — attempting to possess commercial quantity of unlawfully imported border-controlled drug — offence relates to 22.277 kilograms of pure methamphetamine — hardship — argued that offender’s mother’s diabetes, elevated blood pressure and depression should be taken into account by court in determining exceptional circumstances — no actual medical evidence tendered about mother’s medical condition and mother continued to perform role of chief cook at the family restaurant — evidence in relation to family restaurant falls short of meeting high test of exceptional hardship — also relied upon offender’s wife’s endometriosis condition — sentencing judge considered this to be somewhat vague support for proposition of exceptional hardship — for offender to rely upon hardship that imprisonment creates for people other than offender is an appeal for mercy — legal authorities make it plain that court’s discretion to exercise mercy on that basis should only be exercised in exceptional circumstances because imprisoning a person will usually adversely impact on that person’s family — the law recognises that if lenience is given to an offender because of family hardship that results in the guilty offender benefitting so that their innocent family will not be so adversely affected — this means that an equally guilty offender who does not have a family in need would unjustly receive a less lenient sentence — objective seriousness — seriousness of this offending — illicit drugs are a scourge on our society — detrimental to health of users and relationship of users with family and community — scourge of illicit drugs is responsible for a huge toll financially and very significant adverse impact on welfare of whole community — general deterrence — s 16A(2)(ja) — courts have repeatedly emphasised difficulty in detecting importation of illicit drugs and the great social harm they cause mean that principal emphasis in sentencing should be upon deterrence and punishment — rehabilitation — s 16A(2)(n) — offender apparently overcame substance abuse disorder since arrest and overcame problem gambling disorder by 2015 — taken together with intelligence, demonstrated capacity for high work and strong family support, sentencing judge considers good prospects of rehabilitation — continued to maintain innocence in spite of jury verdict, so not remorseful — convicted and sentenced to 10 years’ imprisonment with 6 year and 10 month non-parole period
  • 12 February 2019 —

    R v Edwards [2019] QCA 15 — child exploitation offence — manifest excess — objective seriousness — antecedents

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    leave to appeal against sentence — using a carriage service to access child pornography material offence contrary to s 474.19(1) of Commonwealth Criminal Code — original sentence imposed 15 months’ imprisonment with release on $500 recognizance after serving 2 months, on condition that subject to probation for 2 years — manifest excessobjective seriousness — sentence not manifestly excessive merely if markedly different from other sentences in other cases — necessary to demonstrate that difference is such that there must have been a misapplication of principle or that sentence is “unreasonable or plainly unjust” — no single correct sentence in any particular case — bulk of images, stories and videos fall into Category 6 of animated cartoons or drawings — central argument was that viewing or accessing Category 6 material was essentially a “victimless crime” because no real children were used in depicting them — wrong to categorise as victimless crime — capacity of child exploitation material, even that which does not depict real children, to affect community goes beyond tendency to normalise exploitative sexual activity involving children or stimulate potential participants in it — serves to fuel demand for such material, whether or not it involves real children — its impact may well be to normalise it with recipients or to encourage recipients to take a step further, moving from cartoon world or anime world to that of real world involving real children — the state of advancement in technology over last 20 years reveals inappropriateness of assuming a Category 6 image, cartoon or video is somehow distinctly different from other categories — where once such material was restricted to series of drawings which when moved sequentially and quickly produced moving images, now there is sophisticated Computer Generated Imagery technology, which produces life like images and completely realistic movements — CETS scales are non-legislated scales which are adopted because they are a useful tool, but which should not serve to alter the meaning of statutory text — material is either child exploitation material, or it is not — once it is found to be child exploitation material and an offence is committed, the court must sentence according to established sentencing principles — the scales assist but cannot overwhelm the assessment of the nature of the material as part of assessing the objective seriousness of the conduct — antecedents — s 16A(2)(m) — sentencing judge correct to consider offender’s employment as an AFP officer as an aggravating but not overwhelming factor — offender should not be treated as a “technical” AFP officer just because oath was taken when offender was protective services officer — to take that approach is to demean the oath and make community’s reliance upon sworn officers of the law dependant on individual foibles — sentence imposed not demonstrated to be manifestly excessive — leave to appeal refused
  • 4 February 2019 —

    R v McMahon [2019] ACTSC 25 — obtaining financial advantage by deception — objective seriousness — guilty plea — general deterrence — co-operation

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    sentence — obtaining financial advantage by deception offence contrary to s 134.2(1) of the Commonwealth Criminal Code — offence relates to $139,199.97 obtained through false Centrelink declarations over a period of 8 years — objective seriousness — objective seriousness must be assessed having regard to the amount obtained, the nature and duration of the deception engaged in by the offender and the circumstances in which the offender engaged in that deception — significant amount of money obtained by deception over 8 year period involving both positive misrepresentations and failures to provide accurate information — husband had employment which excluded poverty as any explanation for continuing dishonesty — obtaining increased payments did not lead to extravagant expenditure of additional funds which appear to have been disbursed on day-to-day expenses for offender and family — present offending in low to mid range of objective seriousness for this offence — guilty plea — s 16A(2)(g) — subjective willingness to facilitate justice rather than the utilitarian value of having saved the community expense at trial which provides the basis for leniency in relation to a federal offence — Court not entitled to further reduce sentence on basis of utilitarian value of plea — general deterrence — s 16A(2)(ja) — general deterrence remains a very significant purpose of sentencing for these offences — public confidence essential to ongoing public support for welfare system which protects vulnerable people — co-operation — s 16A(2)(h) — the issue is the degree of leniency warranted as a result of offender’s disclosures — it is likely that a component of the overpayments, those relating to rent assistance, would have been discovered in any event because the Department had already commenced a review of offender’s rent assistance — evidence of Departmental processes not sufficient to indicate that it would have gone further to fully investigate the whole of her entitlements — offender’s disclosures were significant in that they ensured that the whole of unlawful conduct came to light and that offender’s guilt was readily able to be proven — sentence — only a custodial sentence will adequately reflect the seriousness of offending and need for general deterrence — period served by way of full-time detention is necessary — sentence imposed 2 years’ imprisonment with a recognizance release order to operate after 7 months — offender ordered to make reparation to Commonwealth by way of payment of $137,100.69
  • 31 January 2019 —

    R v Bayda; R v Namoa (No 8) [2019] NSWSC 24 — terrorist offences — antecedents — rehabilitation — objective seriousness — general deterrence — assistance to authorities

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    sentence — conspiracy to do acts in preparation for a terrorist act or acts offence contrary to s 101.6(1) of Commonwealth Criminal Code — two co-offenders both charged with conspiracy offence following police investigation into text messages and other intercepted communications — antecedents — s 16A(2)(m) — rehabilitation — s 16A(2)(n) — Offender 1 turned to Christianity while isolated in custody — insufficient evidence to be satisfied on balance of probabilities that conversion is meaningful — not necessary that Offender 1 should convert to another religion in order to renounce the fanaticism which was inherent in the offence — Offender 1 gave evidence that they have abandoned Islam altogether because they ceased to believe in Allah’s command of violence — Offender 1 does not consider the religion as a whole can be separated from that concept — no reason to doubt Offender 1 holds these views sincerely — Offender 2 informed correctional staff they had renounced Islam altogether and reverted to Christianity — unnecessary to determine with what degree of sincerity Offender 2 has reverted to Christianity — sentencing judge satisfied Offender 2 no longer accepts command of Allah for Islamic domination by violence — Offender 2’s evidence that belief in jihadism was a childish phase from which they have matured is supported by surrounding circumstances — Offender 2 has not studied Islamic scriptures with sufficient thoroughness or understanding to have acquired from them a deeply embedded intellectual belief in duty of religious warfare — sentencing judge found Offender 2 drawn into jihadism at a superficial level — Offender 2 at 18 was highly susceptible to militant Islamic brainwashing — educational difficulties and anger during school years necessarily led to a degree of isolation compounded by their lack of involvement in the workforce since leaving school — most would balk at a doctrine of purported instruction from a deity to kill people who do not share one’s religious beliefs — Offender 2 lacked the intellectual strength to bring reason and humanity to prevail against this outrageous concept — objective seriousness — s 16A(2)(a) — gravity which Parliament regards this offence indicated by maximum penalty of life imprisonment — several aspects of offence contribute to inherent degree of seriousness — first, all terrorism offences have propensity to cause generalised insecurity in the community — secondly, where ideological cause sought to be advanced is that of Islam, crime involves an intention to intimidate Australia public and/or Commonwealth or State governments, with the objective of destabilising existing constitutional order — thirdly, any individual terrorism offence by which the ideology of Islam is sought to be advanced is a manifestation of what has become a persistent disruption of peace and security in this country — notwithstanding features which make offences of this nature in general very serious, the particular instance before the Court has elements which greatly reduce is objective gravity — the scale of an intended attack is an important consideration in determining the objective seriousness of an offence against ss 11.5(1) and 101.6(1) of Commonwealth Criminal Code — conspiracy had no defined objective and was not developing in intensity of planning or in specification of objective — the duration of conspiracy is relevant to its objective seriousness — where a conspiracy is in existence for only two weeks, where its first objective is abandoned and a replacement is conceived in only the vaguest terms, these factors support an assessment of a relatively low order of seriousness — overall this conspiracy was at the lower end of the wide range of possible gravity of an offence of this type — Offender 1’s criminality was greater because initiative came from them and they exercised a degree of influence over Offender 2 — general deterrence — s 16A(2)(ja) — although the many individual Islamic terrorists who have been dealt with by the courts have not all acted in concert with each other, their separate offences have been unified by the perpetrators’ adherence to a single religious ideology which has the object of breaking down democratic government and replacing it with Islamic rule — this number of convicted Islamic terrorists whose offences span 15 years, all inspired by the same ideology and with the same objective, constitutes a significant phenomenon — this is to be taken into account in fixing a sentence which provides general deterrence — sentencing judge found both offenders genuine in their renunciation of fanatical beliefs reducing the need for general and specific deterrence —assistance to authorities — ss 16A(2)(h) and 16A — Offender 1 provided assistance to authorities and undertaken to cooperate in other proceedings — Offender 1’s cooperation with authorities has already made their conditions of custody more onerous than those of most prisoners and will continue until release — taking all considerations into account sentencing judge reduced by 20% sentence which would otherwise be imposed — 15% attributed to future assistance — Offender 2’s compliance with police request does not warrant specification of a particular discount but sentencing judge treated it as reinforcing expressions of contribution and confirming progress in rehabilitation — sentences imposed — Offender 1’s sentence to commence from date of arrest, the whole period on remand to count — Offender 2’s sentence should be accumulated by 1 month on sentence offender has served for refusing to answer questions in the Australian Crime Commission — Offender 1’s sentence imposed 4 years’ imprisonment with a 3 year non-parole period — per s 105A.23(1) warned that application may be made for continuing detention order — Offender 2’s sentence imposed 3 years’ imprisonment with a 2 year and 10 month non-parole period — warned that application may be made for continuing detention order
  • 17 January 2019 —

    R v Tran [2019] SASCFC 5 — child exploitation offences — s 20AB

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    appeal against sentence — intentionally importing child pornography offence contrary to s 233BAB(5) of the Customs Act 1901 (Cth) and intentionally making a statement on an incoming passenger card reckless as to the fact that the statement was false offence contrary to s 234(1)(d) of the Customs Act 1901 (Cth) — original sentence imposed 1 year and 8 months imprisonment to be served on a home detention order for the first 10 months and then released on a recognizance to be of good behaviour for 3 years for the first offence, and a conviction was recorded but no further penalty imposed for second offence — s 20AB — s 20AB of Commonwealth Criminal Code does not pick up and apply s 33BB of the Criminal Law (Sentencing) Act 1988 (SA) to a period of imprisonment which is subject to a recognizance release order made pursuant to s 19AC of the Criminal Code — sentencing judge not empowered to order that only a part of sentence of imprisonment be served on home detention — the manifest intention of s 20AB is to cover the field of  sentencing alternatives — the question here is one of the coherent construction of the provisions of the Crimes Act and not as to inconsistency between its provisions and the laws of the States — home detention order should be set aside — resentence — offender has been detained on home detention conditions for a period of nine months — order that offender be sentenced to imprisonment for 11 months but that they be released on a recognizance release order for a period of 3 years pursuant to s 20(1)(b) of the Commonwealth Criminal Code
  • 21 December 2018 —

    Baladjam v The Queen [2018] NSWCCA 304 — preparation for terrorist act offences — parity — manifest excess — guilty plea — co-operation

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    appeal against sentence — one count of doing an act, namely made enquiries about and acquired quantities of firearm ammunition, in preparation for a terrorist act or acts and one count of doing an act, namely made enquiries about and acquired quantities of chemicals in preparation for a terrorist act or acts offences contrary to s 101.6(1) of Commonwealth Criminal Code, one count of possessing a thing, namely a collection of documents, including electronic documents, images, videos and audio files, connected with preparation for a terrorist act or acts, knowing of that connection and one count of possessing a thing, namely a collection of items, including two loaded hand guns, 5 litres of battery acid, 5 litres of hydrochloric acid and telephone handset under false name, connected with preparation for a terrorist act or acts, knowing of that connection offences contrary to s 101.4(1) of Commonwealth Criminal Code — original sentence imposed 18 years’ and 8 months imprisonment with a 14 year non-parole period — parity — while offender and Touma were initially charged with same offence, the acts said to constitute offences for which they were actually charged and sentenced were discrete and no suggestion they were acting in concert — acts charged not connected — Green made it clear principle can apply between co-offenders when charged with different offences, plurality did not state it applied to situation where persons are charged with similar offences arising out of different criminal acts — fact that offenders initially charged as being part of same conspiracy irrelevant when that charge not pressed and no common activities alleged — not to say consistency of sentencing in similar cases is not of importance — manifest excess — offender sought to rely on “additional” evidence in support of argument that sentencing judge underestimated harshness of conditions — evidence does not establish that sentencing judge failed to appreciate conditions of incarceration as they existed at time of sentence, but that conditions have changed — does not fall in R v Smith principle, irrelevant and should be rejected — intervention for manifest excess warranted only when difference in view is such that in all circumstances appellate court concludes misapplication of principle — assessment of gravity of offence was not based on use to which ammunition could be put — while sentence undoubtedly severe, crimes themselves were very serious — ammunition and chemicals obtained for purpose of terrorist act which, while not intended to kill people, was calculated to damage property, endanger life and cause disruption and fear in the community in pursuit of extremist beliefs — acts warrant severe punishment — guilty plea — s 16A(2)(g) — co-operation — s 16A(2)(h) — sentencing judge justified in only allowing combined discount of 15% for both guilty plea and assistance to authorities — discount reflects plea made extremely late and assistance extremely limited — leave granted to appeal out of time — appeal dismissed  
  • 20 December 2018 —

    R v Ruzehaji [2018] SASCFC 139 — drug offences — application of state sentencing legislation — nature and circumstances of the offence

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    appeal against sentence — one count of trafficking in a commercial quantity of a controlled drug and one count of trafficking in a marketable quantity of a controlled drug offences contrary to s 302.3(1) and s 11.2A of Commonwealth Criminal Code, and one count of pre-trafficking in a controlled precursor offence contrary to s 306.4(1) and s 11.2A of Commonwealth Criminal Code — offences related to 879.7g of pure methylamphetamine, 1010.9g of pure cocaine and approximately 400g of pseudoephedrine respectively — original sentence imposed 13 years’ imprisonment with 7 year and 6 month non-parole period — notice of appeal received out of time — particulars of offender’s appeal related to whether evidence provided a basis for the sentencing judge to find that the offender “was at the higher end of the chain of command” and whether offender stood to gain substantial sum of money — application of state sentencing legislation — s 16A(2)(a) — appropriate to take into account by phrase “known to the court” in s 16A(2) in sentence many matters urged in sentencing hearings which are not proved by admissible evidence or formally admitted — this held by plurality of High Court in Weinberger v The Queen (2003) 212 CLR 629, 635 [21] — in South Australia express power in s 12 of the Sentencing Act 2017 (SA) is also available to courts in their disposition of Commonwealth charges as it is picked up and applied by s 79 of the Judiciary Act 1903 (Cth) — Commonwealth Parliament held not to have “otherwise provided” for matters within s 12 of the Sentencing Act within meaning of s 79 of the Judiciary Actnature and circumstances of the offence —— sentencing judge used words at the “higher end of a chain of command” in sentencing remarks in sense of at the higher end of a drug trafficking hierarchy — not to deny application of precepts in Olbrich which require proof as to role and status of particular defendant on particular occasion in particular cases — stress that it is concept of general existence of drug trafficking hierarchies with various roles rather than what a person actually did on a particular occasion that may be taken into account under provisions such as s 12 of Sentencing Act 2017 (SA) — no more than permissible statement of the obvious — person found in possession of multiple types of illicit drugs of total street value between $2,717,860 and $2,922,500 is at different position in drug trafficking hierarchy than person in possession of small number of packaged “street deals” of same illicit drugs of $1,000 value — equally obvious that, other things being equal, the former person will be visited with greater penalty than the latter — while circumstances surrounding possession can differ here offender was the “leading light” for such person(s) who were assisting in moving drugs — no evidence of anyone else ordering about or supervising offender — unknown how long after offender commenced leasing locker that drugs came to be stored there but not the case that it must be taken to be the least possible time before discovery by police — comment by sentencing judge that offender “stood to gain a substantial sum of money for [offender’s] involvement in the crime” no more than permissible statement of the obvious — as matter of human behaviour, person prepared to take risk of large prison sentence well known to follow conviction of trafficking in large amounts and values of drugs will only do so for appropriately substantial profit or reward — extension of time granted — appeal dismissed
  • 20 December 2018 —

    Dunning v Tasmania [2018] TASCCA 21 — drug importation offences — manifest excess — totality — guilty plea

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    appeal against sentence — three counts of attempting to import a marketable quantity of a border controlled drug offences contrary to ss 307.2(1) and 11.1(1) of Commonwealth Criminal Code — state offence — Commonwealth offences relate to attempted importation of 398g of pure amphetamine, 9g of pure MDMA and 2.7g of pure cocaine — original sentence imposed 6 years’ imprisonment with 3 year and 6 month non-parole period — manifest excess totality — manifest inadequacy or excess usually demonstrated when appropriate relativity is absent between nature of offending and matters personal to offender, and sentences imposed in most closely comparable cases — aggregate sentence of 6 years imposed well within range, notwithstanding offender’s age, plea of guilty and other relevant personal circumstances — fact that sentencing judge ordered state sentence be served concurrently with Commonwealth sentence clearly shows sentencing judge paid proper regard to totality principle — such course might be considered lenient given relevant conduct quite separate from Commonwealth crimes — guilty plea — s 16A(2)(g) — sentencing judge discounted offender’s Commonwealth sentence by 20% as discount for utilitarian benefit of offender’s early plea of guilty — In Xiao the New South Wales Court of Criminal Appeal held that in sentencing proceedings governed by s 16A a sentencing judge is entitled to take the utilitarian value of a plea into account in sentencing — sentencing judge not in error in stating that discount for guilty plea to be tempered by overwhelming case against offender — sentencing judge saying no more than that discount was in respect of utilitarian benefit of offender’s plea, that is to say, in recognition of assistance of plea in administration of justice — appeal dismissed
  • 19 December 2018 —

    DPP v El-Haouli [2018] VCC 2172 — obtaining financial advantage from Commonwealth entity — reparation — nature and circumstances of the offence — objective seriousness

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    sentence — two counts of dishonestly obtaining a financial advantage from a Commonwealth entity offences contrary to s 134.2(1) of Commonwealth Criminal Code — offences relate to $86,317.27 obtained through intentional omissions and false Centrelink declarations over a period of 2 years and 6 months, and 14 months respectively — reparation — s 16A(2)(f)(i) — sentencing judge taken fact that offender consented to making of reparation order into account in offender’s favour — nature and circumstances of the offence — s 16A(2)(a) — sentencing judge prepared to accept offender in emotionally stressful situation during period of offending — large family which included two children with special needs — harsh not to recognise offender’s offending occurred in context during period of emotional challenge and stress — prepared to accept that it played some role in offending which would otherwise not be easily explained for mature aged first time offender — sentencing judge did not accept offender felt under financial stress given what offender and partner were earning — not case of true need or true greed — very unusual and nuanced context to this offending — sentencing judge prepared to give some weight to emotionally stressful context of offending, otherwise an appreciably more severe sentence would have been imposed — objective seriousness — offending not a victimless crime — puts at risk government’s ability to assist members of community who are in genuine financial need — given periods and amounts involve, each offence is relatively serious — important that offender voluntarily brought an end to offending, not a situation where offending only curtailed by detection — sentence imposed 15 months’ imprisonment with offender to be released on recognisance release after 5 months
  • 13 December 2018 —

    R v Musleh (No 5) [2018] NSWSC 1927 — foreign fighter offences — objective seriousness — contrition — guilty plea — specific deterrence — general deterrence — retribution — s 16AB — rehabilitation — delay — parity

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    sentence — performing services to promote or support foreign hostile activities offence contrary to s 7(1)(e) of Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) — services performed helped progress movement of 3 co-offenders from Sydney to Syrian Arab Republic via Turkey — services included arranging air tickets, meetings, hotels and foreign currency exchanges and liaising with those who were to meet the group at the Syrian-Turkish border — other offence of acts preparatory to the commission of an offence of entry into foreign state, Syria, with intent to engage in hostile activity in that foreign state by engaging in armed hostilities contrary to ss 7(1)(a) and 6 of Commonwealth Criminal Code taken into account pursuant to s 16AB — nature and circumstances of the offence — s 16A(2)(a) — objective seriousness of offender’s conduct below mid-range — contrition — s 16A(2)(f) — offender’s letter of apology, though expressing regret, seeks to blame others and justify conduct by reference to youth and gullibility — offender was victim and also perpetrator — offender did not give evidence so sentencing judge not prepared to place weight on statements in letter of apology — not prepared to accept returned to Australia because offender felt remorse or contrition — objective facts are consistent with young man wanting to go on adventure to become a hero and fight for just cause but when realised might die in the process, returning to safety of family and home in Sydney — guilty plea — s 16A(2)(g) — not persuaded plea of guilty showed intention to facilitate course of justice — Crown case strong and largely incontrovertible — by pleading guilty offender obtained benefit of rolled-up single charge and fourth charge taken into account pursuant to s 16AB — allow 15% discount for utilitarian value of guilty plea — specific deterrence — s 16A(2)(j) — no need for specific deterrence — offender’s attitude and circumstances changed significantly — appears to have grown up and no longer susceptible to influence of others — general deterrence — s 16A(2)(ja) — need for general deterrence is significant — important to denounce offences to educate community including potential offenders about criminality of foreign fighting as well as preparatory acts or acts of assistance and extent to which commission of such crimes by Australians has potential to harm nation’s international reputation — important to emphasise role of general deterrence and denunciation in sentencing not limited to utilitarian purpose of regulating risks of criminal behaviour — obligation of state through court to express community’s disapproval of offending conduct — retribution — punishment important purpose of sentencing — sentence must take that purpose into account, while acknowledging offender has already suffered for their crimes — offender shunned by those who helped fund his travels as well as members of wider community — s 16AB — offender not to be sentenced for form offence — effect of s 16BA is that Court take into account form offence with view to increasing penalty that would otherwise be appropriate for principle offence — rehabilitation — s 16A(2)(n) — good prospects of rehabilitation from compliance with bail conditions and family circumstances — in these circumstances lack of true remorse or contrition of limited weight as do not consider offender likely to re-offend — delay — consequence of delay is that offender had opportunity to mature and rehabilitate himself before imposition of sentence — offender subject to strict bail conditions which sentencing judge regards as onerous — entitled to take them into account in determining appropriate sentence — parity — although 3 co-offenders not convicted of same offences, they were co-offenders to whom principles of parity apply — inclusion of offence under s 16BA rather than as a charge on indictment is not reviewable and diminishes effect of parity principles, except with respect to principal offence — offender was youngest of co-offenders — sentence — offender convicted — sentenced to 2 years’ and 1 month imprisonment — recognizance release order pursuant to s 20(1)(b) of Commonwealth Criminal Code that after serving 1 year of sentence, on giving $100 surety without security, offender be released upon good behaviour recognizance for rest of term
  • 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