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

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

30 June 2017 — Lee v The Queen [2017] NSWCCA 156 — drug importation offence — De Simoni principle — See Summary 

— appeal against sentence — drug importation offence contrary to s 307.3 of Commonwealth Criminal Code — original sentence imposed 6 years’ imprisonment with 3 year and 6 month non-parole period — gross weight of methamphetamine 3.2 kg — purity test of substance not carried out — marketable quantity 2 grams — application of R v De Simoni [1981] HCA 31 and Nguyen v The Queen [2016] HCA 17 — sentencing judge would have been in error to take into account matter that would have rendered offender liable for more serious offence — inferred that sentencing judge had in mind 2 grams or more — appeal allowed — offender resentenced — 3 year custodial sentence imposed and released on recognizance release order after 1 year and 9 months

29 June 2017 — R v Jafari [2017] NSWCCA 152 — theft against the Commonwealth offence — custodial sentence — contrition — See Summary 

 — appeal against sentence — theft offence contrary to s 131.1(1) of Commonwealth Criminal Code — original sentence imposed 2 year custodial sentence served by way of ICO — offender senior lawyer at Australian Government Solicitor — stole money from trust established by Commonwealth — beneficiary injured former solider of Australian Defence Force — custodial sentence — sentencing judge in error in considering no part of sentence should be served in prison — nothing but custodial sentence would suffice to fulfil requirements of general and specific deterrence and authoritative denunciation of offender’s wrongdoing — individual beneficiary suffered loss due to offender’s conduct — adverse consequences for public trust in legal profession — contrition — s 16A(2)(f) — pecuniary penalty order made under s 320(d) of Proceeds of Crime Act 2002 (Cth) pursuant to ICO — no pecuniary penalty order made at time of sentencing — application of R v Host [2015] WASCA 23 — s 320(d) does not permit a sentencing court to take fact of payment of pecuniary penalty order into account — fact that order was made by consent may provide evidence of contrition under s 320(a) — arguably not made entirely consensually but as condition of ICO — remorse appears to have arisen only in face of inevitable conviction and likely custodial sentence — no evidence before Court indicating remorse for beneficiary — fact that offender had access to property which could have been sold to allow funds to be replaced demonstrates ongoing unwillingness to recognise true extent of offending — appeal allowed — offender resentenced — ICO cannot be imposed as new sentence exceeds 2 years — 3 year custodial sentence imposed and released on recognizance release order after 18 months

23 June 2017 — DPP (Cth) v Besim [2017] VSCA 158 — preparatory terrorism offences — rehabilitation — young offender — See Summary 

 — appeal against sentence — acts in preparation of or planning for a terrorist offence contrary to s 101.6 of Commonwealth Criminal Code — original sentence imposed 10 years’ imprisonment with 7 year and 6 month non-parole period — deterrence — application of DPP (Cth) v MHK [2017] VSCA 157 — substantial weight given to general deterrence and protection of community in terrorism cases — that offender indicated intention to be killed during attack does not reduce the importance of general deterrence — rehabilitation — rehabilitation could not be regarded as form of assurance of community protection as no basis for finding that offender had changed his views — application of Lodhi v The Queen [2007] NSWCCA 360 — rehabilitation and personal circumstances given les weight in terrorism cases — youth — offender aged 18 at time of offending — application of DPP (Cth) v MHK [2017] VSCA 157 — the greater the objective gravity of the offence, rehabilitation will be given greater weight than general deterrence, denunciation and retribution — high moral culpability — terrorism offences always considered extremely grave — extremely serious example of the offence due to fact that police officer was targeted for beheading, that killing to take place publicly and on ANZAC Day, and offender’s willingness to kill innocent victims— distinguished Benbrika v The Queen [2010] VSCA 281 — appeal allowed— offender resentenced — 14 year custodial sentence imposed with 10 year and 6 month non-parole period

23 June 2017 — DPP (Cth) v MHK [2017] VSCA 157 — preparatory terrorism offences — young offender — rehabilitation — guilty plea — deterrence — See Summary 

 — appeal against sentence — acts in preparation of or planning for a terrorist offence contrary to s 101.6 of Commonwealth Criminal Code — original sentence imposed 7 years’ imprisonment with 5 year and 3 month non-parole period — youth — offender aged 17 at time of offending — offender young and impressionable and more prone to being corrupted than an older person — youth given less weight as offender old enough to know that what he was doing was grossly wrong, to give some thought to enormity of actions he was planning to carry out and to resist the allure of the influence of Islamic State — rehabilitation — offender’s reformation and rehabilitation far from complete — offender did not demonstrate to a sufficient degree a sense of contrition for planned acts — rehabilitation undergone in environment where offender sheltered from kind of influences that initially impelled him to engage in offending conduct — guilty plea — illustrative of offender’s subjective willingness to facilitate the course of justice — offender prepared to give evidence, face cross-examination and renounce and denounce Islamic State — comparable cases — similar preparatory cases few in number which limits utility in establishing appropriate range of sentences — primacy given to general deterrence and denunciation above personal circumstances of the offender — criminal justice system will not have sufficiently discharged duty to express community’s outrage of conduct of offender and to deter other like-minded individuals if general deterrence and denunciation not given appropriate weight — distinguished Benbrika v The Queen [2010] VSCA 281 where significantly lower sentences were imposed for very serious terrorism offences — sentences within range at that time — no such sentences would have been imposed today having regard to scourge of modern terrorism and development of sentencing principles — appeal allowed — offender resentenced —11 year custodial sentence imposed with 8 year and 3 month year non-parole period

23 June 2017 — DPP (Cth) v Brown [2017] VSCA 162 — drug importation offences — nature and circumstances of the offence — course of conduct — role of offender — See Summary 

 — appeal against sentence — drug importation offences contrary to s 307.1(1) of Commonwealth Criminal Code — original total effective sentence of 12 years imprisonment with 7 year non-parole period imposed — nature and circumstances of the offence — high objective seriousness — very large quantities of drugs — first importation involved nearly 4.5 times commercial quantity — second importation involved approximately 60 times commercial quantity — ‘street’ value of drugs between $45.3 million and $60.4 million — application of Nguyen v The Queen [2011] VSCA 32 — quantities represented importation on ‘massive scale’ — no guilty plea — no co-operation with authorities — offending assumed to be motivated by greed as offender anticipated profiting from role — course of conduct — offending took place over four months — duration significant as showed purposeful offending, offender had time to reflect and offending not spontaneous — role of offender — degree of involvement depends on substance of matter, not label which may be attached to it — offender did not sit at top of hierarchy but had been entrusted with considerable responsibility given quantity of drugs commissioned to him to handle — offender played executive role — offender autonomous and operative within designated sphere of operations — may not have known quantities being imported at time of first importation but did not withdraw from enterprise when learnt of quantities — offender well aware of scale of importation — utility of comparable cases — sentencing judge not in error by relying on table provided by Director — not inconsistent with The Queen v Pham [2015] HCA 39 — application of DPP (Cth) v Thomas [2016] VSCA 237 — table provided ‘sufficient information about the features of each case’ to enable useful comparisons to be drawn — general deterrence to be given greater weight in drug importation cases — appeal allowed — offender resentenced — total effective sentence of 20 years’ imprisonment imposed with non-parole period of 15 years

23 June 2017 — DPP (Cth) v El Sabsabi [2017] VSCA 160 — preparatory foreign incursion offences — custodial sentence — rehabilitation — delay — See Summary 

 — appeal against sentence — acts preparatory to commission of a foreign incursion offences contrary to s 7(1)(e) of Crimes (Foreign Incursion and Recruitment) Act 1978 (Cth) — offender sentenced to 44 day custodial sentence on first charge — sentenced to 2 year CCO on second charge — s 17A(1) —  custodial sentence must not be imposed unless Court satisfied no other sentence appropriate in all circumstances of the case — sentencing judge not in error by not imposing custodial sentence for second charge — passing of custodial sentence on first charge does not mandate a term of imprisonment be required for second charge — objective seriousness of the offence — sentencing judge in error by overstating objective seriousness of the offence — application of R v Succareih [2017] QCA 85 — where offence does not contain an element that offender’s conduct was in furtherance of terrorism offender should not be sentenced as if the offence contained such an element — offender’s statements about his particular beliefs in relation to killing in the name of Allah or creation of an Islamic caliphate must be taken into account but are not matters that elevate the objective seriousness of actual offences — rehabilitation — sentencing judge not in error by observing that offender’s rehabilitation was ‘well advanced’ — offender had complied with bail conditions and had been productively employed for more than two years following release from custody — delay — sentencing judge not in error by accepting proposition that delay was indicative ‘to some degree’ of AFP’s view of gravity of offending — sentencing judge’s assessment of seriousness of offender’s conduct significant for purposes of sentencing  rather than AFP’s assessment — appeal dismissed

23 June 2017 — Aboud v The Queen [2017] NSWCCA 140 — sexual harassment offences — delay — non-parole period — co-operation — See Summary 

 — appeal against sentence — sexual offending or harassment offences via the internet contrary to ss 474.17(1), 417.26(1) and 417.27(1) Commonwealth Criminal Code — delay — delay of four years from offender’s initial arrest until re-arrest — delay not caused by conduct of offender — ‘uncertain suspense’ — considered Sabra v The Queen [2015] NSWCCA 38 — not necessary for offender to establish detrimental consequences of delay — delay so obvious and egregious that sentencing judge aware of existence and significance — sentencing judge correctly took into account delay by characterising it as ‘substantial and really inexcusable’ — non-parole period — 75% of total effective sentence — considered Hili v The Queen [2010] HCA 45 — considered Afiouny v The Queen [2017] NSWCCA 23 — sentencing judge not in error by not giving reasons for imposing particular non-parole period — co-operation — s 16A(2)(h) — offender voluntarily supplied passwords and account details to police at time of initial arrest — sentencing judge made no reference to offender’s co-operation or s 16A(2)(h) — sentencing judge not in error by stating that offender had ‘little option’ but to plead guilty on one hand and proposition that details of offending only became available after access to Facebook account had been provided on other hand — important admission that offender was owner and sole user of relevant Facebook accounts — concession that purpose of Facebook accounts was to talk to young females particularly significant — churlish for offender to have denied access to passwords in  the circumstances — offender’s provision of passwords to police was commendable but not critical — leave to appeal against sentence granted — appeal dismissed

23 June 2017 — Zaky v The Queen [2017] NSWCCA 141 — Commonwealth fraud offence — incorrect statement of maximum penalty — See Summary 

 — appeal against sentence — defrauding the Commonwealth offence contrary to s 29D of Crimes Act 1914 — obtaining a financial advantage by deception offences contrary to s 134.2(1) of Commonwealth Criminal Code — sentencing judge incorrectly specified maximum penalty as 20 years’ imprisonment instead of 10 years’ imprisonment — not material error —clear indications sentencing judge aware of maximum penalty — sentencing judge’s incorrect statement an inadvertent misstatement which did not affect the sentence imposed — even if error was material, sentence should not be reduced — application for leave to appeal against sentence granted — appeal dismissed

22 June 2017 — DPP (Cth) v Singh [2017] VSCA 146 — procurement of person under 16 for sexual activity offence — custodial sentence — See Summary 

 — appeal against sentence — using a carriage service to procure a person under 16 years to engage in sexual activity offence contrary to s 474.26(1) of Commonwealth Criminal Code — original sentence imposed 3 year CCO and $2,000 fine — custodial sentence — well-established that offenders who use internet for such offences will ordinarily receive an immediate custodial sentence — immediate custodial sentence need not be imposed in every case of offending contrary to s 474.26 — non-custodial sentencing options should be very rare and for exceptional cases — immediate custodial sentence imposed if appeal court exercising sentencing discretion — sentence remarkably lenient but not wholly outside available range of sentences — appeal dismissed

9 June 2017 — Van Zwam v The Queen [2017] NSWCCA 127 — drug importation offence — contrition — See Summary 

 — appeal against sentence — drug importation offence contrary to s 307.1 of Commonwealth Criminal Code — contrition — sentencing judge in error by finding no genuine evidence of remorse or contrition in absence of applicant giving evidence on oath subject to cross-examination — sentencing judge entitled to give evidence of remorse and contrition in affidavit less weight than evidence given orally but not entitled to disregard it altogether — sentencing judge not entitled to reject evidence where no challenge or dispute by way of cross-examination — offender not called to give evidence not an indication that the offender was not prepared to subject himself to cross-examination on the affidavit — offender’s good character and circumstances by which offender drawn into offending do not make statements of remorse and contrition in affidavit inherently implausible — leave to appeal against sentence granted — 8 year and 6 month custodial sentence imposed with 4 year and 6 month non-parole period

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

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