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

27 October 2017 — Dagher v The Queen [2017] NSWCCA 258 — obtaining financial advantage — cooperation — contrition — See Summary 

 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 — See Summary 

 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 — See Summary 

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 — See Summary 

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 — See Summary 

 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

27 September 2017 — R v Jousif [2017] NSWSC 1299 — bribery of foreign official offences — injury, loss or damage resulting from the offence — deterrence — character — See Summary 

 sentence — conspiring to bribe an Iraqi official contrary to ss 11.5(1) and 70.2(1) of Commonwealth Criminal Code — three co-offenders — US$1 million paid in order to secure infrastructure contracts — injury, loss, or damage resulting from offence — s 16A(2)(e) — no evidence about what happened to money after it was transferred to Iraq or if ever received by public official does not mean no damage resulted from offence — bribery distorts markets and impedes assessment of tenders on any rational basis — payment of sum reinforces recipient’s belief that foreigners will pay substantial bribes Iraqi officials to get infrastructure contracts and reinforces offenders’ belief that time and effort soliciting Australian business people to pay such sums is worth expending — amounts to damage — contrition — s 16A(2)(f) — guilty plea — s 16A(2)(g) — offenders expressed degree of contrition by pleading guilty to offences — general deterrence — s 16A(2)(ja) — important that sentence includes element of denunciation so that Australians who carry on business overseas appreciate that bribery of foreign officials is as serious and criminal as bribery of local officials — bribery not excusable on basis of business imperative — other offences — s 16A(2)(b) — Jousif’s previous offence of obtaining money by deception of limited weight as resulted from gambling addiction — adequacy of punishment — s 16A(2)(k) — adequate punishment important as without Jousif instigating and facilitating, Elomars would not have carried out offending conduct — adequacy of punishment important as I and M Elomar as knew conduct was morally wrong and illegal but took calculated risk for prospect of gaining substantial wealth — I and M Elomar losing good reputation and prospect of disqualification from director positions amounts to punishment — offender’s family and dependants — s 16A(2)(p) — due to need for general deterrence, probable effect of sentence on family and dependents does not affect length of sentence but is relevant in fixing non-parole period — character — s 16A(2)(m) — good character not significant mitigating factor — but for good character, would not have had opportunity to tender for large infrastructure project at all — custodial sentence — full-time custodial sentences only appropriate sentence given seriousness of offending — fine imposed on I amd M Elomar to contribute to deterrent effect of sentence — Jousif sentenced to 4 years’ imprisonment with 2 year non-parole period — I Elomar sentenced to 4 years’ imprisonment with 2 year non-parole period and $250,000 fine — M Elomar sentenced to 4 years’ imprisonment with 2 year non-parole period and $250,000 fine

25 September 2017 — De Lorenzo v DPP (Cth) [2017] VSCA 270 — copyright offences — parity principle — co-operation — See Summary 

appeal against sentence — making an unauthorised decoder available online and causing unauthorised access to encoded broadcasts by way of trade offences contrary to ss 135ASG and 135ASJ of Copyright Act 1968 (Cth) — original sentence 15 months’ imprisonment with offender to be released after 10 months on recognizance of good behaviour for 18 months — parity principle — sentencing judge in error by imposing disproportionately severe sentence on offender when compared to co-offender — offender operated a card-sharing Pay TV piracy network in Melbourne — co-offender operated same scheme in Sydney — charge against co-offender understood to be representative charge — two further offences taken into account pursuant to s 16BA and inform seriousness of primary offence — co-offender sentenced to 18 months’ wholly suspended imprisonment and released on recognizance to be of good behaviour for 18 months on condition that he enter into a surety of $1,000 — co-offender’s involvement in card-sharing piracy of at least equivalent significance to offender’s — offender and co-offender both ‘principal facilitators’ — offender has justifiable grievance that he was dealt with disproportionately severely compared to co-offender — co-operation — offender’s cooperation with investigators warranted materially reduced penalty — detection of this type of offending exceptionally difficult — appeal allowed — original sentence of imprisonment confirmed — offender resentenced to be released on recognizance after 164 days being the total time served to date

21 September 2017 — R v Russell [2017] SASCFC 126 — customs offences — custodial sentence — See Summary 

 appeal against sentence — 51 customs offences contrary to ss 233BAA(4), s 233(1)(d), and 233(1AA) of the Customs Act 1901 (Cth) and s 11.1(1) of Commonwealth Criminal Code — original sentence 3 years’ imprisonment with recognizance release order after 2 years — substances imported were anabolic and androgenic substances, human chorionic gonadotrophin and human growth hormone — custodial sentence — sentencing judge in error by considering no alternative but to impose custodial sentence because of number of offences and period of time over which offences committed — immediate recognizance release orders made in many comparable cases — courts generally impose more lenient penalties for importation of anabolic and androgenic substances than importation of illicit drugs — offender had no history of drug related offences — offender was contrite and unlikely to reoffend — sentencing judge in error by failing to consider whether immediate or early release on recognisance, or sentence served on home detention might be appropriate — sentence manifestly excessive — appeal allowed — offender resentenced to 2 years and 6 months imprisonment — offender to be released after 8 months on recognizance to be of good behaviour for 2 years

20 September 2017 — Jaafar v The Queen [2017] NSWCCA 223 — drug importation offence — instinctive synthesis approach — parity principle — See Summary 

 appeal against sentence — conspiracy to import commercial quantity of a border-controlled drug offence contrary to ss 11.5(1) and 307.1(1) of Commonwealth Criminal Code — original sentence 18 years and 6 months’ imprisonment with 11 year non-parole period — instinctive synthesis approach — sentencing judge in error by engaging in ‘two-tier’ sentencing rather than instinctive synthesis approach — contrary to principles in Markarian v The Queen [2005] HCA 25 — knowledge — consideration of R v Nguyen [2010] NSWCCA 238 and Garcia v The Queen [2013] NSWCCA 241 where offender’s knowledge of amount of drugs imported increases seriousness of offence — operation involved 123.4 kilograms pure cocaine dissolved into ethanol solution in 499 out of 10,800 wine bottles imported — offender’s task to receive and store cocaine — careful steps taken by offender in carrying out task necessarily required consideration of size of importation — satisfied beyond reasonable doubt that while offender may not have known precise amount, offender knew that very large quantity had been imported — parity principle — difference of 6 years between starting point of offender’s sentence and co-offender’s sentence — offender engaged in conspiracy for longer time period and to greater extent than co-offender — co-offender less culpable than offender as co-offender did not engage in importation of cocaine or recruiting other participants in conspiracy, had less knowledge of amount of drug imported and did not have a managerial role — co-offender’s participation in conspiracy still significant — material differences do not reasonably explain 6 year difference in starting point of sentences — disparity gives rise to justifiable sense of grievance of offender — effect of sentence on offender’s family and dependants — s 16A(2)(p) — offender already separated from wife prior to offending — offender’s wife’s feelings of loneliness, difficulties in coping with her medical conditions, and caring for their children would not have been lessened to any significant degree if offender had not been imprisoned — impact of sentence on offender’s family does not amount to “exceptional hardship” — co-operation — s 16AC — modest weight given to offender’s cooperation with police — no discount for future cooperation as uncertain whether it will occur or be of value — difficulty in detecting such offence, grave consequences to Australian society and potential financial rewards from such a large importation increase high objective seriousness of offence — chief weight to be given to general deterrence — but for justifiable sense of grievance arising from sentence imposed on co-offender, a lesser sentence would not be warranted — appeal allowed — offender resentenced to 17 years and 6 months’ imprisonment with 11 year non-parole period

14 September 2017 — Dennis v The Queen [2017] VSCA 251 — child sexual exploitation offences — manifest excess — totality principle — mental condition — See Summary 

 appeal against sentence — using a carriage service to access child exploitation material contrary to s 474.19(1) of Commonwealth Criminal Code — state offences — original sentence imposed 4 years and 6 months’ imprisonment with 2 year and 6 month non-parole period — objective seriousness — sentencing judge not in error by finding offending objectively serious — mere fact that number of images accessed and possessed was ‘moderate’ when compared to other offenders does not automatically mean that offending cannot be described as ‘very serious’ — absence of aggravating factors does not preclude sentencing judge from characterising offending as ‘very serious’ — 5 year period of offending contributed to objective seriousness — escalation of offending — sentencing judge not in error by referring to an ‘escalation’ in offender’s conduct — sentencing judge’s remarks to be read as a whole — sentencing judge not in error by using ‘escalation’ in sense of ‘persistence’ as the offender showed no sign of abating despite previous sentences for similar offending — escalation factual matter for sentencing judge to decide based on offender’s history of offending — manifest excess — offender’s reliance on state sentencing principles in relation to Commonwealth offence misplaced — individual sentences imposed by sentencing judge at top end of range of sentences reasonably open — individual sentences not manifestly excessive — totality principle — using a carriage service to access child pornography and knowingly possessing child pornography overlapping but distinct offences — different victims and separate offending warranted some cumulation — sentencing judge in error by ordering cumulation of 12 months as disproportionate to total offending — cumulation in comparable cases did not exceed six months — sentence manifestly excessive — mental condition — application of Verdins principles — first limb of Verdins principles not enlivened — offender’s moral culpability in relation to offending not affected by mental impairment as offender able to understand what he was doing was wrong — offender deliberately concealed offending from partner — offender’s mental condition not related to offending — immaturity and personal traits falling short of mental impairment cannot engage Verdins principles — fourth limb of Verdins principles not enlivened — although mental condition made it difficult for offender to learn from his mistakes, did not prevent offender from exercising choice between engaging in conduct and abstaining from it — appeal allowed — offender resentenced to 3 years and 9 months’ imprisonment with 2 year non-parole period

1 September 2017 — Yip v The Queen [2017] VSCA 231 — drug importation offence — co-operation — See Summary 

 appeal against sentence — importing a commercial quantity of a border controlled drug offence contrary to s 307.1(1) of Commonwealth Criminal Code — original sentence 7 years and 6 months’ imprisonment with 5 year and 6 month non-parole period — co-operation — offender agreed to give evidence against co-offender — co-offender originally pleaded not guilty — co-offender changed plea to guilty and offender not required to give evidence — sentencing judge expressly took offender’s offer of assistance and increased burden of imprisonment into account — offer of assistance ‘significant’ and ‘important’ — sentencing judge acknowledged that offender had placed himself at significant risk of reprisal and gaol would be more onerous in protective custody — sentencing judge acknowledged that offer of assistance was a relevant mitigating factor not withstanding that offender did not ultimately have to give evidence — appeal dismissed

31 August 2017 — Meg v The Queen [2017] WASCA 161 — drug importation offences — totality principle — See Summary 

 appeal against sentence — two counts of importing a marketable quantity of a border controlled drug offence contrary to s 307.2(1) of Commonwealth Criminal Code — original sentence 9 years and 6 months’ imprisonment with 7 year non-parole period — first limb of totality principle — proportionality — total effective sentence high compared to comparable cases — drugs imported in single transaction, plea of guilty and offender’s position as courier taken into account — fact that pellets which offender digested contained more than one kind of border controlled drug does not significantly increase level of criminality — offender not aware importing more than one kind of border controlled drug — amount of each drug imported substantially less than commercial quantity — appeal allowed — offender resentenced — 7 years custodial sentence imposed with 4 year and 6 month non-parole period

28 August 2017 — Lyons v The Queen [2017] NSWCCA 204 — child exploitation offences — totality — rehabilitation — remorse — See Summary 

 — appeal against sentence — using a carriage service to transmit child exploitation material offences contrary to ss 474.19(1) and 474.24A of Commonwealth Criminal Code — state offences — original sentence 9 years’ imprisonment with 6 year non-parole period — objective seriousness — sentencing judge in error by assessing objective seriousness of whole of offending together — criminality involved in each offence ought to be assessed individually — sentencing judge’s remarks did not distinguish amongst various offences — sentencing judge’s remarks under heading ‘The dissemination of child pornography’ indicate sentencing judge dealt collectively and not separately with five Commonwealth offences — totality principle — overall sentence and non-parole period overly severe — offending took place over relatively short period of time — offender had diagnosed sexual disorder that involved addiction to pornography — rehabilitation — offender voluntarily sought treatment for diagnosed sexual disorder prior to offending — remorse — decision of offender and wife to sell house to afford ongoing treatment and counselling attests to offender’s remorse and prospects of rehabilitation — appeal allowed — offender resentenced — 6 years and 3 month custodial sentence imposed with 4 year and 6 month non-parole period

25 August 2017 — Huynh v The Queen [2017] VSCA 216 — drug importation offences — delay — parity principle — age — See Summary 

 — appeal against sentence — drug importation offences contrary to ss 305.4(1), 306.4(1) and 307.12(1) of Commonwealth Criminal Code and s 233BAB(5) of Customs Act 1901 (Cth) — state offences — co-offenders — Huynh’s original sentence 12 years’ imprisonment with 8 year non-parole period — Au’s original sentence 9 years’ imprisonment with 6 year non-parole period — delay — 2 year delay between Huynh’s incarceration on remand and final disposition of proceedings — sentencing judge in error by not taking into account entire period spent on remand — sentencing judge in error by considering effect of delay was ‘tempered’ by Huynh’s progress on remand — whole period of delay to be taken into account — progress on remand to be considered as a further aspect of mitigation flowing from delay — parity principle — Au played lesser role in offending than Huynh — sentencing judge imposed same sentences on Au and Huynh for relevant offences — sentencing judge in error by not giving adequate weight to Au’s lesser role — age — Au 27 years of age at time of offending — Au not to be considered ‘relatively youthful offender’ — Au’s prior drug trafficking conviction also reduced significance of youth — appeal allowed — offenders resentenced — 11 year custodial sentenced imposed on Huynh with 7 year non-parole period — 7 year and 6 month custodial sentence imposed on Au with 5 month non-parole period

23 August 2017 — R v Freedman [2017] NSWCCA 201 — child exploitation offence — accumulation — ICO — deterrence — rehabilitation — See Summary 

 — appeal against sentence — using a carriage service to access child exploitation material offence contrary to s 474.19(1) of Commonwealth Criminal Code — original sentence 12 month and 15 month ICO’s to be served wholly concurrently — accumulation — Commonwealth and state offences overlap but are not identical — legislative provisions create two distinct forms of criminal offending — sentencing judge in error by giving no reasons for ordering the sentences to be served wholly concurrently — general deterrence — ICO represents substantial punishment but reflects substantial degree of leniency because it does not involve immediate incarceration — application of DPP (Cth) v D’Alessandro [2010] VSCA 60 — degree of leniency inherent in ICO failed to satisfy requirement to have regard to general deterrence — rehabilitation — sentencing judge in error by concluding that offender was capable of rehabilitation without any actual findings of prospects of rehabilitation — sentencing judge in error by giving matters pertaining to rehabilitation excessive weight — psychologist did not diagnose offender as suffering from any form of mental illness — psychologist concluded offender’s ‘deep-seated personal trauma’ had not been adequately addressed — subjective considerations cannot overshadow objective gravity of offence — appeal allowed — offender resentenced — 18 month custodial sentence imposed —  to be released on own recognizance after 15 months without security in a sum of $500 to be of good behaviour for 3 months

18 August 2017 — R v Nakash [2017] NSWCCA 196 — drug trafficking offence — manifest inadequacy — See Summary 

 — appeal against sentence — drug trafficking offence contrary to s 302.2(1) of Commonwealth Criminal Code — secondary proceeds of crime offence contrary to s 400.3(1) of Commonwealth Criminal Code taken into account pursuant to s 16BA — original sentence 8 years imprisonment with 4 year and 6 month non-parole period  — offender central figure and played essential role in Australian operations of international drug syndicate — maximum penalty for primary offence life imprisonment — maximum penalty of secondary offence 25 years of imprisonment and large fine — sentence and non-parole period imposed at lower end of spectrum but not manifestly inadequate — consideration of Olivares v The Queen [2016] NSWCCA 270, Shen v The Queen [2009] NSWCCA 251 and Le v The Queen [2010] NSWCCA 285 — three cases suggest sentence imposed very lenient but do not compel affirmative conclusion that manifestly inadequate — offender born in Israel and suffered upbringing which sentencing judge accepted as ‘horrific’ and featuring ‘significant abuse and violence, characterised as bordering on torture’ — offender’s role very significant but not at pinnacle of syndicate — application of Nguyen v The Queen [2016] HCA 17 where sentencing judges should be accorded maximum flexibility so long as sentences accord with principle — sentence imposed reflected humane and merciful approach to offender’s subjective circumstances — sentence imposed open to sentencing judge — sentence not manifestly inadequate — appeal dismissed

11 August 2017 — R v Elfar & Golding [2017] QCA 170 — drug importation offences — parity principle — See Summary 

 — appeal against sentence — drug importation offences contrary to ss 11.2A(1), (2) and 307.1(1) of Commonwealth Criminal Code — importation of 400kg cocaine — 283kg pure cocaine — estimated retail value $120 million — three co-offenders — original sentence 30 years’ imprisonment — non-parole period of 20 years for Elfar — non-parole period of 18 years for Golding — parity principle — application of Postiglione v The Queen [1997] HCA 26 — difference in non-parole period between Elfar and Golding not in error — little doubt that Elfar had greater involvement than Golding — Elfar made boat available for deportation and had longer, earlier and more intense connection with crew on board other vessel — difference between non-parole period of Elfar and Golding and third co-offender — sentence of third offender 25 years’ imprisonment with 15 year non-parole period — third offender provided great deal of assistance to authorities including details and extent of involvement, entered guilty plea and expressed consistent remorse — none of those factors applied to Elfar and Golding — sentencing judge correct in recognising distinguishing features and imposing different non-parole periods — applications for leave to appeal against sentence refused — appeal dismissed

10 August 2017 — DPP (Cth) v Afford [2017] VSCA 201 — drug importation offence — fault element — manifest inadequacy — See Summary 

 — appeal against sentence — drug importation offence contrary to s 307.1 of Commonwealth Criminal Code — original sentence 3 years and 2 months imprisonment — offender reckless as to whether suitcase imported contained prohibited drug — sentencing judge in error by concluding that fault element of recklessness was mitigating factor — sentencing judge in error by concluding moral culpability was low — sentencing judge in error by applying primarily Victorian sentencing practices — sentence manifestly inadequate — appeal allowed — offender resentenced — 10 years imprisonment with 7 year non-parole period

9 August 2017 — R v Scott [2017] SASCFC 96 — drug importation offences — manifest excess — totality principle — See Summary 

 — appeal against sentence — drug importation offences contrary to ss 307.1(1) and 307.12(1) of Commonwealth Criminal Code — state offences — original sentence 19 years and 3 months imprisonment with 10 year and 8 month non-parole period — manifest excess — offender imported 59.47kg methylamphetamine — estimated street value $60 million — importation serious incursion into crime — offender more than “mere courier” — offender travelled across Indonesia to arrange importation — used personal business as cover for importation — starting point of 18 years imprisonment within range of appropriate sentences — sentence not manifestly excessive — totality — Commonwealth offences to be served partially concurrently — sentencing judge correct in considering whether the sentences were proportionate to the offences when viewed collectively — sentences properly reflected the significance of offending — sentence not so crushing as to require adjustment — appeal dismissed

3 August 2017 — DPP (Cth) v Nippon Yusen Kabushiki Kaisha [2017] FCA 876 — cartel offence — corporations — contrition — co-operation — deterrence — See Summary 

 — sentence — giving effect to cartel provision offence contrary to s 44ZZRG(1) of Competition and Consumer Act 2010 (Cth) — offender is a corporation — offending conduct involved shipping of 69,348 new vehicles to Australia — offender derived revenue of AU$54.9 million and profit of AU$15.4 million from commerce affected by offending conduct — likely that anti-competitive conduct resulted in higher freight rates on subject shipping routes to Australia and passed to Australian consumers in form of higher prices for imported vehicles — nature and circumstances of offence — s 16A(2)(a) — maximum penalty $100 million fine — duration of offending 3 years considered lengthy period — instances of non-adherence to cartel agreements not mitigating factor — collusion with manufacturers resulting in discounts not mitigating factor — ignorance of Australian law not mitigating factor — not a victimless offence — offending conduct deliberate, systematic and covert — contrition — s 16A(2)(f) — offender taken large range of measures to strengthen culture of compliance with competition laws since offending — wholesale change in corporate culture in respect of anti-competitive practices — course of conduct — s 16A(2)(c) — ‘rolled-up charge’ imposed where more than one contravention of relevant offence is particularised as part of charge — guilty plea — s 16A(2)(g) — application of DPP (Cth) v Thomas [2016] VSCA 237 — outcome of discount will have little or no difference where given on objective basis of utilitarian benefit or subjective basis of willingness to facilitate the course of justice — co-operation — s 16A(2)(h) — s 16AC — past cooperation — offender’s co-operation full, frank, truthful and mostly expeditious — co-operation concerned own offending and offending of others — high level of difficulty in investigation without co-operation — discount of 40% for past co-operation, assistance, plea of guilty, contrition and remorse reflected in co-operation — future co-operation — discount of 10% for offender’s undertaking to co-operate in future proceedings — deterrence — general deterrence significant sentencing consideration for cartel related offences — cartel conduct notoriously difficult to detect, investigate and prosecute — consideration of R v Curtis (No 3) [2016] NSWSC 866 where general deterrence weighty consideration in sentencing for offences which are difficult to detect and investigate — sentences imposed for such offences should be set so that likely penalty will be such that it could not be regarded as acceptable cost of doing business — specific deterrence not significant sentencing consideration as offender already taken extensive steps to minimise risk of similar cartel offence in future — need for adequate punishment — s 16A(2)(k) — penalties imposed overseas to be given little weight as not imposed in respect of the offending conduct of the charge — large multinational corporations who engage in global cartels must be sent clear message that they will be punished in Australia irrespective of penalties imposed in other jurisdictions — no suggestion that offender did not have capacity to pay fine — offender sentenced — $25 million fine imposed

20 July 2017 — Merrill v The Queen [2017] VSCA 189 — child exploitation offences — sentencing statistics — See Summary 

 — appeal against sentence — engaging in sexual activity with a child outside Australia offences, and production and possession of child exploitation material offences contrary to ss 272.8 and 272.9 of Commonwealth Criminal Code — original sentence 5 years and 3 months’ imprisonment with 3 year non-parole period — no sentencing statistics available for offences of which offender convicted — statistics of offences that carry similar maximum penalty not informative — consideration of Assheton v The Queen [2002] WASCA 209; R v ONA [2009] VSCA 146; R v Wicks [2005] NSWCCA 409 where maximum penalties and duration of offending shorter — sentence not manifestly excessive — application for leave to appeal sentence refused — appeal dismissed

17 July 2017 — Rajabizadeh v The Queen [2017] WASCA 133 — drug importation offences — totality principle — See Summary 

— appeal against sentence — attempting to possess and actual possession of marketable quantity of border controlled drug offences contrary to ss 308.1(1) and (3) of Commonwealth Criminal Code — original sentence imposed 9 years and 6 months’ imprisonment with 7 year non-parole period — totality principle — sentencing judge correct in saying only immediate custodial sentence appropriate — sentencing judge in error in application of totality principle — total sentence did not properly reflect fact that two different types of drugs formed part of same parcel and offender engaged in single act of attempting to possess that parcel — relatively limited reduction in total sentence did not reflect the substantial common elements between the two counts — comparable cases indicate sentence imposed very high — appeal allowed — offender resentenced — 7 year and 6 month custodial sentence imposed with 5 year non-parole period

7 July 2017 — DPP (Cth) v Besim; DPP (Cth) v MHK (No 3) [2017] VSCA 180 — preparatory terrorism offences — community protection — continuing detention order — See Summary 

— appeal against sentence — acts in preparation of or planning for a terrorist offence contrary to s 101.6 of Commonwealth Criminal Code — continuing detention order under Division 105A of Commonwealth Criminal Code — community protection and incapacitation of offender — whether application of Division 105A diminishes or affects sentencing principles — consideration of Veen v The Queen (No 2) [1988] HCA 14 — weight given to protection of community cannot produce sentence which is disproportionate to criminality of offence — protection of community cannot produce sentence which serves function of preventative detention — court’s consideration whether to make continuing detention order under Division 105A significantly different than determining sentence — only theoretical possibility that an application for continuing detention could be made at completion of term of imprisonment —protection of community to be taken into account at time of apprehension of offender and at time of sentence — determining whether to make continuing detention order would take place within 12 months of completion of offender’s sentence and directed to different questions — not necessary to express conclusion whether provisions in Division 105A would in every case be irrelevant — sufficient to conclude that any relevance of Division 105A might have to determination of sentences would be marginal — appeal dismissed

Recent Legislative Amendments

7 December 2016 — Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 (Cth) — amends Crimes Act 1914 (Cth) — See Summary 

­­— court to explain sentence — inserts note into s 16F(1) — when sentencing an offender for an offence referred to in paragraph 105A.3(1)(a) of the Commonwealth Criminal Code the court must warn the offender about continuing detention orders under s 105A.23 of the Commonwealth Criminal Code

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 — Commentary on this amendment has been incorporated into the database, see Conditional Release Orders After Conviction

alternative sentencing options — repeals s 20AB(1) — inserts new s 20AB(1) — updates list of types of orders as alternatives to imprisonment that should be available for federal offenders — clarifies courts power to pass a similar sentence or order to the named orders — Commentary on this amendment has been incorporated into the database, see Additional Sentencing Alternatives

Recent Updates to Commentary

October 2017 — Adequacy of Punishment — See Summary 

— updated to include commentary on DPP (Cth) v Nippon Yusen Kabushiki Kaisha [2017] FCA 876, where penalties imposed in other jurisdictions may be relevant when assessing adequacy of punishment imposed on an offender, and cases where general and specific deterrence is relevant to the assessment of adequacy of punishment.

September 2017 — Physical Condition — See Summary 

— updated to include new cases on the ‘Smith’ principle where an offender’s physical condition may be a mitigating factor where imprisonment will be a greater burden on the offender as a result of their physical condition, or where there is a high risk imprisonment will have a grave impact on their health

August 2017 — Options without Proceeding to Conviction — See Summary 

— updated to include new cases on extenuating circumstances, circumstances where offending not considered trivial and circumstances where the need for general deterrence may override factors in s 19B requiring that a conviction order is imposed

July 2017 — Antecedents — See Summary 

— new page on content and scope of offender’s antecedents as separate from offender’s character, including consideration of timing of charged prior convictions, systematic deprivation and alcohol abuse, whether the offender has served home detention bail, the relevance of child exploitation material in relation to child exploitation offences, and relevance of prior illicit drug use in relation to drug importation offences

July 2017 — Character — See Summary 

— updated to include new cases on categories of offences where good character may carry less weight and new commentary on circumstances where good character may carry less weight such as offending over an extended period of time, where good character has provided the opportunity to offend, and where the need for general deterrence is strong

June 2017 — Victim Impact Statements —  See Summary 

— updated to include commentary on the use of victim impact statements under comparable state and territory sentencing regimes

May 2017 — Mental Condition — See Summary 

— updated to include commentary on new sentencing cases incorporating the Verdins principles where an offender’s mental condition may be taken into account as a mitigating factor

April 2017 — Guilty Plea See Summary 

— updated to include commentary on whether a discount for a guilty plea is given on the subjective basis of the offender’s willingness to facilitate the course of justice or the objective basis of the utilitarian benefit of a guilty plea

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