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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 weekly basis. Click on the arrows to see a full summary.

Recent Federal Cases

  • 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on parole for earlier offence — by force of s 19AQ(1) parole order in respect of that sentence was taken to have been revoked upon imposition of sentence for the present matter — unserved part of earlier sentence was 3 years’ and 6 months — sentencing judge construed s 19AQ(5) to mean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
  • 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
  • 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
  • 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
  • 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
  • 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
  • 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
  • 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  
  • 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
  • 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
  • 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
  • 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 offender to be released on recognizance after 1 year 3 months and 23 days — guilty plea — sentencing judge in error in not having regard to utilitarian value of offender’s guilty plea — offender entitled to considerable credit for early admissions to police and entry of guilty plea at first available opportunity — Xiao establishes that offender entitled to discount for utilitarian value of plea — given error offender must be resentenced — general deterrence — s 16A(2)(ja) — these types of offence can have profound impact upon victims who are vulnerable due to young age — intrinsic harm is caused by indecent internet communications with children even if repercussions do not become apparent immediately — difficulty of detecting this behaviour and need to protect children from online predators means that general deterrence is of great importance — specific deterrence — s 16A(2)(j) — fact that no steps taken prior to sentencing by offender to undergo counselling of concern given offender’s failure to demonstrate insight into impact of offending upon children involved — there is a need for specific deterrence at least to some extent — rehabilitation — s 16A(2)(n) — positive conclusion about offender’s prospects of rehabilitation difficult to make — while psychologist’s evidence that offender unlikely to reoffend not directly contradicted, absence of evidence from offender means psychologist’s evidence given little weight — offender does have some prospect of rehabilitation based on affidavit evidence showing offender regrets offending — deportation — offender’s possible deportation not taken into account in accordance with position in New South Wales (R v Mirzaee [2004] NSWCCA 315, R v Van Hong Pham [2005] NSWCCA 96 and AC v R [2016] NSWCCA 107) — even if Victorian (Guden v R (2010) 28 VR 288) and Queensland (R v Schelvis; R v Hilderbrand [2016] QCA 294) approach adopted this is a case where evidence about offender’s likely deportation speculative — if there is to be a challenge to long standing New South Wales approach to relevance of possible deportation to sentencing, this case not an appropriate vehicle for such a challenge — leave to appeal granted — offender resentenced to 1 year and 6 months’ imprisonment with offender to be released on recognizance after 12 months
  • 24 August 2018 —

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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