Commonwealth Sentencing Database

The purpose of the Commonwealth Sentencing Database is to provide judicial officers and other users with rapid and easy access to information about sentencing for Commonwealth offences.

Click on the links on the menu bar to access:

  • the ‘Principles and Practice’ component (a guide for judicial officers and practitioners to federal sentencing)
  • the ‘Statistics’ component (statistical information on sentences by courts for federal offences)
  • the Publications list (a list of reports and articles on federal sentencing)

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

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Recent Federal Cases

17 March 2017 — DPP (Cth) v Pratten (No 2) [2017] NSWCCA 42 — dishonesty offences — proceeds of crime offences — double jeopardy — dependants — antecedents — See Summary 

— appeal against sentence — seven counts of obtaining a financial advantage by deception contrary to s 134.2(1) of the Commonwealth Criminal Code — offences contrary to s 37(1) of the Proceeds of Crime Act 2002 (Cth) and s 11.1 of the Commonwealth Criminal Code — double jeopardy — application of Bui v DPP (Cth) [2012] HCA 1 — not open to the court to treat ‘double jeopardy’ as a relevant consideration when resentencing for a federal offence — s 16A(2)(p) — offender’s family and dependants — sentencing judge erred in not stating that circumstances of hardship to offender’s dependants must be exceptional — evidence did not establish that offender’s custodial sentence would significantly and deleteriously affect the offender’s daughters’ lives — s 16A(2)(m) — antecedents — offender first time offender — leniency associated with first time offender does not apply to all offences committed by a serial offender merely because when the last offence was committed they had not been charged for an earlier offence — the fact that the convictions involved repeated dishonesty over seven years disentitled the offender to any leniency in respect of later offences — assumption of payment of tax liability — sentencing judge erred by assuming tax liability had been satisfied despite no evidence before the court — overly lenient sentence imposed — leave to appeal against sentences granted — 6 year 4 month custodial sentence imposed with 3 year 9 month non-parole period

6 March 2017 — Le v The Queen [2017] NSWCCA 26 — drug importation offence — s 16BA — parity — See Summary 

— appeal against sentence — drug importation offence — s 16BA — taking further admitted offence into account — sentencing judge not in error by stating weight had to be given to need for personal deterrence and community’s entitlement to exact retribution for the offence to be dealt with pursuant to s 16BA rather than principal offence — sentencing judge’s remarks an imprecise statement of the practical effect of taking into account a further serious offence when sentencing for principal offence — language ‘infelicitous’ but not an error — parity — sentencing judge not in error as offender had greater knowledge and was involved for longer period in commission of offence than co-offender — leave to appeal against sentence granted — appeal dismissed

3 March 2017 — Afiouny v The Queen [2017] NSWCCA 23 — causing loss to Commonwealth offence — non-parole period — totality principle — See Summary 

— appeal against sentence — dishonestly causing loss to the Commonwealth in illicit importation of tobacco contrary to s 135.1(5) of the Commonwealth Criminal Code — offender already serving custodial sentence for Commonwealth bribery offences — additional 8 month non-parole period imposed for instant offence not manifestly excessive — sentencing judge had proper regard to objective seriousness of offence, totality principle and offender’s prospects of rehabilitation — no error which required court’s intervention as one year parole period not unusual for this type of offending —leave to appeal against sentence granted — appeal dismissed

16 February 2017 — R v Zhang [2017] SASCFC 5 — identification offences — importation offences — proceeds of crime offence — foreign passport offence — co-operation — deportation — See Summary 

— appeal against sentence — unlawfully dealing with identification information offences contrary to Commonwealth Criminal Code — importation with intention of defrauding the revenue offences contrary to Customs Act 1901 (Cth) — dealing with proceeds of crime offence contrary to Commonwealth Criminal Code — attempting to possess false foreign passport offence contrary to Foreign Passports (Law Enforcement and Security) Act 2005 (Cth) and Commonwealth Criminal Code — co-operation — sentencing judge not in error by not stipulating precise reduction on account of co-operation — offender’s co-operation with authorities adequately recognised in low non-parole period — deportation — offender foreign national — application of R v Schelvis; R v Hildebrand [2016] QCA 294 — sentencing judge not in error in failing to take into account prospect of deportation of offender in relation to more burdensome sentence and possibility of Chief Executive’s discretion exercised under s 37A of Correctional Services Act 1982 (SA) — appeal dismissed

13 February 2017 — R v Arthur [2017] ACTSC 23 — child exploitation — guilty plea — See Summary 

— sentencing — child exploitation offences contrary to s 474.19 of the Commonwealth Criminal Code — territory child exploitation offences — federal discount for guilty plea given on basis of subjective willingness to facilitate the course of justice — applied Cameron v The Queen [2002] HCA 6 and R v Harrington [2016] ACTCA 10 — 2 years imprisonment imposed with conditional release order

10 February 2017 — R v Sigalla [2017] NSWSC 52 — directors’ duties — delay — victim — See Summary 

— sentencing — 24 counts of dishonestly using position as director to gain an advantage contrary to s 184(2)(a) of the Corporations Act 2001 (Cth) — delay not mitigating as offences led to complex and time-consuming investigation and offender’s conduct delayed trial — victims of the offence include investing public as well as company and shareholders — high level of objective seriousness — need for lengthy custodial sentence — importance of general deterrence as breach of directors’ duties offences difficult to detect — 10 years imprisonment with 6 year non-parole period imposed — Commentary on this case has been incorporated into the database, see Course of Conduct

10 January 2017 — NGO v The Queen [2017] WASCA 3 — entering into agreement to commit drug importation offence — guilty plea — parity principle — manifest excess — See Summary 

— appeal against sentence — entering into an agreement with other persons to commit a drug importation offence contrary to ss 11.2A(1), 11.1 and 307.1 of the Commonwealth Criminal Code — guilty plea — s 9AA of the Sentencing Act 1995 (WA) does not apply to federal offences — general and unqualified provision in s 16A(2)(g) inconsistent with detailed and exhaustive provision in s 9AA — sentencing judge not bound to reduce the sentence by 25% on account of guilty plea — sentencing judge not bound to state period or percentage of reduction of sentence on account of guilty plea — no disparity between co-offenders — sentence not manifestly excessive — application for leave to appeal against sentence refused

9 December 2016 — R v Al-Kutobi; R v Kiad [2016] NSWSC 1760 — terrorism offences — guilty plea — See Summary 

— sentencing — conspiring to commit an act or acts in preparation for or planning a terrorist act contrary to Commonwealth Criminal Code — factual dispute at sentence — resolved in favour of the Crown — found beyond reasonable doubt that offenders were in the late stages of preparing to cause serious harm or death to a person — late guilty pleas — conflicting legal authority on whether Court is entitled to have regard to utilitarian benefit of guilty plea — bound to apply authority of Tyler v The Queen [2007] NSWCCA 257 — not necessary to resolve differing authorities — little difference between discount which would be allowed for subjective willingness to facilitate the course of justice or objectively ascertained utilitarian benefit of the guilty plea as plea was entered only a few days before trial — nature and circumstances of the offence — incumbent on courts to make plain that extremist ideologies and beliefs have no place in Australian society — importance of general and specific deterrence — hardship as a result of onerous conditions of custody given allowance in a general sense — mandatory minimum non-parole period of 75% of term of imprisonment — 20 years imprisonment with 15 year non-parole period imposed

7 December 2016 — R v M H K [2016] VSC 742 — terrorism offences — young offender — See Summary 

— act in preparation or planning a terrorist offence contrary to Commonwealth Criminal Code — offender aged 17 at time of offending at time of arrest offender part-way through the construction of several pipe bombs and assembled means to construct a pressure cooker bomb written material including Facebook posts compelling evidence of intention reflecting hostile propaganda of ‘ISIS’ early plea of guilty utilitarian benefit of plea and subjective willingness to facilitate the course of justice taken into account importance of denunciation, punishment, general deterrence and protection of the community young people inclined to pursue similar course must understand that despite their youth significant punishment awaits them mandatory minimum non-parole period of 75% of term of imprisonment 7 years imprisonment imposed with 5 year 3 month non-parole period if permitted to do so a minimum term of four years would have been imposed to better enable supervision and rehabilitation given offender’s youth

30 November 2016 — Nicholls v The Queen [2016] VSCA 300 — directors’ duties — guilty plea — See Summary 

— appeal against sentence — three counts of using position as director dishonestly with intention of gaining an advantage contrary to s 184(2)(a) of the Corporations Act 2001 (Cth) — 4 year 6 month custodial sentence imposed with release on recognizance after serving 3 years at first instance — no error in determining discount for guilty plea — DPP (Cth) v Thomas [2016] VSCA 237 considered — sentencing judge used language of facilitating the course of justice — ordinarily no material difference between discount given for objective (utilitarian) benefit and subjective willingness to facilitate course of justice — important that utilitarian benefit be adequately reflected — not generally necessary for sentencing judge to differentiate between formulations — strength of the Crown case cannot affect discount for utilitarian benefit — no particular feature that meant application of subjective and objective criteria should yield a different result in this case — judge indicated during plea hearing that plea had utilitarian benefit — manifest excess — sentences set at 40-60 per cent of the maximum penalty — maximum penalty five years — offending could not properly be said to be at or near the higher end of objective seriousness — assessment of objective gravity informed and circumscribed in a significant way by the maximum penalty — matter for the legislature to consider whether sentencing courts should have greater flexibility to impose more substantial sentences for serious breaches of duty — offender aged 63 at time of offending — sentence manifestly excessive with regard to guilty plea, age, prospects of rehabilitation and delay — offender resentenced — appeal allowed — 3 year 6 month custodial sentence imposed with 2 year 6 month non-parole period

30 November 2016 — Kenworthy v The Queen [No 2] [2016] WASCA 207 — child exploitation — manifest excess — See Summary 

— appeal against sentence — child exploitation offences — 3 year 9 month custodial sentence imposed with 2 year 6 month non-parole period at first instance — manifest excess —sentencing judge erred in assessment of objective seriousness of two of the seven counts — accessing of six images did not justify sentence of 3 years imprisonment — offender transferring material between email accounts did not justify sentence of 3 years imprisonment in the context of an offence directed to trade in child exploitation material — offender resentenced — 2 year 9 month total effective custodial sentence imposed with release on recognizance after serving 22 months

28 November 2016 — R v Crumpton [2016] NSWCCA 261 — reckless operation of aircraft — objective seriousness — deterrence — one transaction rule — See Summary 

— appeal against sentence — two counts of operating an aircraft in a reckless manner contrary to ss 20A(1) and 20A(2) of the Civil Aviation Act 1988 (Cth) — 15 month and 9 month custodial sentences imposed to be served concurrently with immediate release on recognizance at first instance — sentencing judge erred in taking into account that the maximum penalties for the offences under consideration were not substantial when sentences for all criminal offences were considered — failure to take into account general deterrence — reference to general deterrence when read in context indicates sentencing judge was dealing with specific deterrence —  general deterrence significant matter where offence is committed in relation to flying of aircraft — punishment calculated to come to the attention of the small group of persons in the community involved in flying aircraft — analogous with the effect of general deterrence on white collar crime — tension between authorities about whether a suspended sentence operates as a deterrent and to what extent — Zaky v The Queen [2015] NSWCCA 161; R v Saleh [2015] NSWCCA 299 considered— not necessary to resolve conflict — accepted that in certain cases a suspended sentence can amount to real punishment and does not in all cases undermine significance of general deterrence — one transaction rule and concurrency — sentencing judge erred in holding that the sentence for one of the offences would reflect the criminality of both — the fact that injury and death occurred is an aggravating factor — points strongly to the need for some accumulation — sentences manifestly inadequate — residual discretion not exercised in favour of offender — serious examples of offending — offender deliberately flew aircraft at very low level conscious there may be powerlines and despite not having flowing in location previously — appeal allowed — offender resentenced — significant consideration on re-sentence is that the offender was not originally sentenced to an actual custodial term — if offender was being sentenced at first instance only full-time custodial sentences would be adequate and for substantially longer periods — 2 year custodial sentence imposed — sentenced to be served by way of Intensive Correction Order if offender assessed as suitable

15 November 2016 — R v Schelvis; R v Hildebrand [2016] QCA 294 — drug importation — deportation — See Summary 

— appeal against sentence — drug importation offences — relevance of deportation at sentence — consideration of s 501(3A) of the Migration Act 1958 (Cth) which provides for automatic cancellation of visa where the holder is sentenced to imprisonment for 12 months or more — state sentencing case of Da Costa v The Queen [2016] VSCA 49 applied — focus should be on prospect of deportation as a result of a rejection of an application for revocation of the automatic cancellation of the visa — unsafe to proceed on the footing that the current provisions of the Migration Act 1958 (Cth) will remain in force when visa decision made given history of frequent amendments — impractical to assess the factors which might be considered by the Minister or delegate at that time — prospect that unfavourable visa decision will be made is entirely speculative — no error in not taking into account by way of mitigation any hardship offender might suffer as a result of the prospect of deportation — it was not submitted that the sentence should be mitigated on account of imprisonment being more burdensome for a prisoner who apprehends they may be deported after serving that imprisonment — such an allowance would not have had a material impact upon the sentence imposed — application for leave to appeal against sentence refused

15 November 2016 — DPP (Cth) v Boyles [2016] VSCA 267 — child exploitation — mental condition — See Summary 

— appeal against sentence — child exploitation offences — offender serving Community Correction Order — offender suffered from bipolar disorder — sentencing judge erred in sentencing on the basis that the first limb of Verdins v The Queen [2007] VSCA 102 was enlivened — first limb provides that mental condition may reduce moral culpability of the offending conduct — offender not taking prescription medication at time of offending — in order to reduce moral culpability the impairment of mental functioning must be involuntary — offender aware of adverse consequences of not taking medication — no evidence that deciding to not take medication was a result of underlying mental condition — nature of offending demanded a custodial sentence — exercise of residual discretion — effect of appeal process on offender — offender suffered anxiety, stress and resultant depression as a result of appeal process — offender at liberty for four months and in compliance with CCO at time of hearing of appeal — public interest in ensuring offender’s continued rehabilitation — appeal dismissed

9 November 2016 — Younan v The Queen [2016] NSWCCA 248 — money laundering — age — non-parole period — See Summary 

— appeal against sentence — money laundering offences contrary to div 400 of the Commonwealth Criminal Code — offender aged 22-23 at time of offending — offender’s immaturity not a significant factor in commission of offence — psychological evidence, medical evidence and tendered references did not suggest immaturity — sentencing judge erred in applying s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) where the statutory ratio between the non-parole period and parole period could be varied by a finding of special circumstances — no comparative provision in Crimes Act 1914 (Cth) — no fixed ratio for non-parole periods for Commonwealth offences — application of Hili v The Queen [2010] HCA 45 — sentencing discretion exercised afresh — no different sentence required — leave to appeal against sentence granted — appeal dismissed

Recent Legislative Amendments

27 November 2015 — Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth) — amends Crimes Act 1914 (Cth) — See Summary 

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general deterrence — inserts new s 16A(2)(ja) — court to have regard to the deterrent effect that any sentence or order under consideration may have on other persons — Commentary on this amendment has been incorporated into the database, see Deterrence

co-operation — repeals s 21E — inserts new s 16AC — court can reduce sentence, order or non-parole period in recognition of undertaking to co-operate with law enforcement agencies — DPP given new right to appeal where offender has not co-operated in accordance with undertaking when offender’s sentence has expired — Commentary on this amendment has been incorporated into the database, see Co-operation

non-parole periods and recognizance release orders — repeals and replaces s 19AB — removes option for court to make a recognizance release order where the sentence imposed exceeds three years — inserts new s 19AB(2)–(3) — court can decline to set a non-parole period or fix a recognizance release order where offender expected to be serving a State or Territory sentence immediately after the end of the federal sentence — Commentary on this amendment has been incorporated into the database, see Non Parole Period and Recognizance Release Orders

rectification of errors — inserts new s 19AHA — sets out powers of court to correct Commonwealth sentencing orders which contain technical errors, defects of form, or ambiguity — Commentary on this amendment has been incorporated into the database, see Non Parole Period and Recognizance Release Orders

release on licence — inserts new s 19AP(4A) — matters to which the Attorney-General may have regard when deciding whether to grant a licence — extensive co-operation not already taken into account at sentence — serious medical treatment required — Commentary on this amendment has been incorporated into the database, see Release on Parole or Licence

parole — inserts new s 19AKA — purposes of parole are protection of the community, rehabilitation of the offender and reintegration of the offender into the community — Commentary on this amendment has been incorporated into the database, see Release on Parole or Licence

parole orders — inserts new s 19ALA — matters to which the Attorney-General may have regard when considering whether to make or refuse to make a parole order — inserts new s 19AL(4)–(6) — clarifies application of s 19AL when Attorney-General making parole orders for joint Commonwealth and State offenders — inserts new s 19AL(3A) — provides criteria for considering applications for early release on parole — repeals s 19AP(8)–(9) — inserts new s 19APA — expands power of Attorney-General to amend parole orders and licences — Commentary on this amendment has been incorporated into the database, see Release on Parole or Licence

conditional release — inserts new s 20(1A) — requires court to specify that where a person is subject to the supervision of a probation officer they will not travel interstate or overseas without the probation officers written permission

alternative sentencing options — repeals s 20AB(1) — inserts new s 20AB(1) — updates list of types of orders as alternatives to imprisonment that should be available for federal offenders — clarifies courts power to pass a similar sentence or order to the named orders

Recent Updates to Commentary

March 2017 — Course of Conduct — See Summary 

— updated to include commentary on judicial inconsistency surrounding s 16A(2)(c) on whether a course of conduct refers only to uncharged criminal conduct, charged criminal conduct, representative charges, or the totality principle

February 2017 — Reparation OrdersSee Summary 

— updated to include commentary on courts exercising discretion to impose a reparation order, including the relevance of offender’s financial circumstances, reparation orders and co-offenders, and considerations when ordering reparation as a condition of discharge or release

January 2017 — CorporationsSee Summary 

— updated to include commentary on Director of the Fair Work Building Industry Inspectorate v CFMEU [2016] FCA 413 where court held s 4K does not apply to civil pecuniary penalty provisions of the Fair Work Act 2009 (Cth)

October 2016 — Nature and Circumstances of the Offence — See Summary 

 — updated to include commentary on factors relevant to assessing the nature and circumstances of federal offences, including drug, alcohol and gambling addictions, premeditation, planning, motive, non-exculpatory duress, entrapment, the offender’s degree of participation, the profits from the offence and whether the offence involved a breach of trust

October 2016 — Offender’s Family and Dependants — See Summary 

 — updated to include commentary on the divergent approach of ACT courts to the ‘exceptional circumstances’ test in R v Weir [2015] ACTSC 394 and DPP (Cth) v Ip [2005] ACTCA 24, the relevance of international instruments to consideration of s 16A(2)(p), principles relevant to sentencing breastfeeding mothers and consideration of hardship to dependants as a result of co-operation

October 2016 — Hardship to the offender — See Summary 

 — updated to include commentary on hardship to the offender caused by the effect of the sentence on the offender’s dependants and the non-application of the ‘exceptional circumstances’ test relevant to s 16A(2)(p) to consideration of such hardship

September 2016 — Conditional Release Orders after Conviction — See Summary 

 — updated to include amendments to the Crimes Act 1914 (Cth) inserting new s 20(1A), the application of Dimech v Watts [2016] ACTSC 221 resolving that community service cannot be made a condition of release under s 20 and new commentary on factors to be taken into account when imposing a recognizance release order

September 2016 — Additional Sentencing Alternatives — See Summary 

 — updated to include amendments to the Crimes Act 1914 (Cth) which updated the list of state and territory sentencing options available to federal offenders and to include new commentary on principles relevant to imposing Intensive Correction Orders, Community Correction Orders and Intensive Supervision Orders, including the application of Antanackovic v The Queen [2015] VSCA and R v Porte [2015] NSWCCA 174