56. Commonwealth Sentencing — Comprehensive Cheat Sheet¶
Scope and currency
Crimes Act 1914 (Cth) Part 1B · jurisdiction · s 16A factors · mandatory minimums · RRO vs NPP · built from Nick's sentencing notes
Starting point — Part 1B of the Crimes Act 1914 (Cth) is the governing regime for federal offenders. s 16A(1): the court must impose a sentence or make an order of a severity appropriate in all the circumstances of the offence. Sentence by instinctive synthesis. State law applies only where picked up and not inconsistent with s 16A. Work the gates in order.
The decision sequence¶
GATE 1 Summary or indictable? (ss 4G, 4H, 4J)
→ s 4G — indictable: Commonwealth offences with a maximum penalty exceeding 12 months imprisonment are indictable unless a contrary intention appears. → s 4H — summary: offences not punishable by imprisonment, or punishable by imprisonment not exceeding 12 months, unless a contrary intention appears. → s 4J(1) — summary determination: an indictable Commonwealth offence punishable by imprisonment not exceeding 10 years may be heard and determined summarily with the consent of the prosecutor AND the defendant. → s 4J(2) — exception: does not apply where another Commonwealth law (other than the Crimes Act 1914) says it can be determined summarily — in that case no prosecution consent needed. → s 4J(4) — $5,000 property exception: where the indictable offence relates to property whose value does not exceed $5,000, the prosecutor makes the request and the court determines whether it is fit to hear it — no defence input required. → s 4J(7) — excluded entirely: treason, urging violence and advocating terrorism or genocide, sabotage, espionage and foreign interference cannot be heard summarily.
Summary sentencing limits — court of summary jurisdiction (s 4J)¶
| Situation | Maximum imprisonment | Maximum fine | Provision |
|---|---|---|---|
| Offence punishable by imprisonment ≤ 5 years | 12 months | 60 PUs | s 4J(3)(a) |
| Offence punishable by > 5 but ≤ 10 years | 2 years | 120 PUs | s 4J(3)(b) |
| Indictable offence, property ≤ $5,000 (dealt with under ss(4)) | 12 months | 60 PUs | s 4J(5) |
Overriding restrictions (s 4J(6)): a court of summary jurisdiction cannot impose imprisonment exceeding the maximum available on indictment (a); cannot impose a fine exceeding the maximum available on indictment (b); and cannot impose both imprisonment and a fine if, on trial by indictment, the offence is punishable by one or the other but not both ©.
Add s 4JA — and the yardstick point: s 4JA applies maximum fines where indictable offences punishable by a pecuniary penalty only are dealt with summarily. Critically, even when the summary caps apply the court must still use the INDICTABLE maximum penalty as the yardstick to assess objective seriousness — the cap is a limit on the court's power, not a substitute maximum (Hansford v Neesham; R v Duncan (2007) 172 A Crim R 111; Loader v The Queen (2011) 33 VR 86; Dankovic; and see Elias v R (2013) 248 CLR 483; R v Liang (1995) 82 A Crim R 39).
GATE 2 Mandatory minimum? (ss 16AAA, 16AAB, 16AAC)
→ s 16AAA: sets out minimum penalties that must be imposed for certain offences (see MC spreadsheet). → s 16AAB(2): sets out minimum penalties for a current Commonwealth child sexual abuse offence where the person has, at an earlier sitting, been previously convicted of a child sexual abuse offence. → s 16AAC(1) — the complete answer: neither section applies to a person who was under 18 at the time the offence that would otherwise attract the minimum was committed. → s 16AAC(2) — the only reductions: a court may impose less than the minimum only if it considers it appropriate because of either or both of: (a) the person pleading guilty, taken into account under s 16A(2)(g); (b) the person having cooperated with law enforcement in the investigation of the offence or of a Commonwealth child sex offence, under s 16A(2)(h). → s 16AAC(3) — the caps: up to 25% of the specified minimum for the guilty plea (a); up to 25% for cooperation (b); and up to 50% where both apply ©.
General position on federal mandatory penalties
In general federal legislation does not provide for mandatory penalties. However there are some offences where an RRO is not available, and some where a term of imprisonment must be imposed — e.g. certain people smuggling offences under s 236B Migration Act 1958.
The sentencing factors — s 16A¶
The overarching requirement — s 16A(1): in determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.
s 16A(2) — matters the court must take into account so far as relevant and known¶
| Para | Matter |
|---|---|
| (a) | the nature and circumstances of the offence |
| (b) | other offences (if any) that are required or permitted to be taken into account |
| © | if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character |
| (d) | the personal circumstances of any victim of the offence |
| (e) | any injury, loss or damage resulting from the offence |
| (ea) | harm suffered by any victim as a result of the offence — any victim impact statement |
| (f) | the degree of contrition, shown by (i) taking action to make reparation for any injury, loss or damage; or (ii) in any other manner |
| (fa) | the extent to which the person has failed to comply with pre-trial or ongoing disclosure orders or obligations |
| (g) | if the person has pleaded guilty — (i) that fact; (ii) the timing of the plea; and (iii) the degree to which the fact and timing resulted in any benefit to the community, or any victim of, or witness to, the offence |
| (h) | the degree of co-operation with law enforcement agencies in the investigation of the offence or of other offences |
| (j) | specific deterrence |
| (ja) | general deterrence |
| (k) | the need to punish (ensure adequate punishment) |
| (m) | the character, antecedents, age, means and physical or mental condition of the person |
| (ma) | if the person's standing in the community was used to aid the commission of the offence — that fact as a reason for aggravating the seriousness of the criminal behaviour |
| (n) | the prospect of rehabilitation of the person |
| (p) | the probable effect that any sentence or order would have on any of the person's family or dependents |
s 16A(2AAA) — Commonwealth child sex offences: the court must have regard to the objective of rehabilitating the person, including by considering whether it is appropriate — (a) when making an order, to impose conditions about rehabilitation or treatment options; and (b) in determining the length of any sentence or non-parole period, to include sufficient time for the person to undertake a rehabilitation program.
s 16A(2A) — customary law and cultural practice excluded both ways
The court must not take into account under s 16A(1) or (2) — other than para (2)(ma) — any form of customary law or cultural practice as a reason for (a) excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour; or (b) aggravating the seriousness of the criminal behaviour.
Factors NOT listed in s 16A — the list is not exhaustive¶
• The gateway: the non-exhaustive nature of the s 16A(2) list leaves room for the application of general common law principles.
• Which principles survive: proportionality; totality (arguably dealt with in s 16B, requiring the court to have regard to sentences of imprisonment already imposed or which the offender is liable to serve because of the revocation of a parole order); delay; community protection; extra-curial punishment; and parity.
• State law in federal sentencing: may apply in RARE situations where the State legislation does not conflict with s 16A. s 16B recognised totality. R v ONA (2009) 24 VR 197 — a sentencing court must not have regard to any consequences that may arise from SORA registration; this applied to the sentencing of the federal offender as it was held not inconsistent with s 16A.
Proof, consistency and the prosecutor¶
Fact-finding on sentence (Olbrich, endorsing Storey)¶
| What is being proved | Standard |
|---|---|
| Facts taken into account in a way adverse to the interests of the accused | Beyond reasonable doubt |
| Circumstances the judge proposes to take into account in favour of the accused | Balance of probabilities |
The rule (Olbrich, endorsing Storey): "[T]he judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities."
Reasonable consistency in federal sentencing (Pham)¶
• (1) Consistency means like cases are to be treated alike and different cases treated differently.
• (2) The consistency sought is consistency in the application of the relevant legal principles.
• (3) Consistency for federal offenders is achieved through the work of intermediate appellate courts.
• (4) Such consistency is not synonymous with numerical equivalence and is incapable of mathematical expression or expression in tabular form.
• (5) For that and other reasons, presentation in the form of numerical tables, bar charts and graphs of sentences passed on federal offenders in other cases is unhelpful and should be avoided.
• (6) When considering sufficiency of a sentence at first instance, an intermediate appellate court should follow the decisions of other intermediate appellate courts unless convinced there is a compelling reason not to do so.
• (7) Appellate intervention for manifest excess or inadequacy is not warranted unless, having regard to all relevant factors including the degree of difference from comparable cases, the court is driven to conclude there must have been some misapplication of principle.
• The 'yardstick' formulation: intermediate appellate courts "must have regard to sentencing decisions of other intermediate appellate courts in comparable cases as 'yardsticks' that may serve to illustrate (although not define) the possible range of sentences available … unless there is a compelling reason not to do so"; comparable cases decided by the intermediate courts of appeal provide the most useful guidance to a sentencing judge, because their reasons reveal the mix of factors taken into account (Pham).
Role of the prosecutor¶
• No quantified range: the prosecution is not permitted or obliged to submit a quantified range of sentences.
• But must identify the disposition: the Crown has an obligation to make clear what type of sentencing disposition — whether imprisonment or otherwise — it contends is necessary or appropriate (Matthews v R (2014) 44 VR 280 [27]).
• Responding to a defence range: the prohibition on contending for a sentence within a particular range does not apply to defence counsel. If defence makes such a submission, the Crown may respond by telling the judge whether it would be open to sentence within that range; if the Crown contends it would not, it may rely on comparative cases, current sentencing practice and other relevant considerations. However the Crown may not respond to a defence range by putting an alternative range (Matthews).
• Duties at the sentencing hearing: the Crown has a duty to assist the sentencing judge to avoid appealable error; must assist the court to fulfil its duty to give proper consideration to previous sentencing decisions; and must make appropriate submissions on relevant questions of law, maximum penalties, minimum penalties and special principles of sentencing.
Federal principles — what applies and what does not¶
| Principle | Position for federal offenders | Authority |
|---|---|---|
| Boulton | Does NOT apply to the sentencing of federal offenders. | Atanackovic v R (2015) 45 VR 179 |
| Verdins | Applies — the principles have been applied frequently throughout Australia, including in the sentencing of federal offenders. | Verdins |
| Single aggregate for federal + State | Not permissible to impose a single aggregate penalty for a federal offence and a State or Territory offence. | Fasciale v R (2010) 30 VR 643 [27] |
| SORA consequences | The court must not have regard to consequences arising from SORA registration — the State provision was not inconsistent with s 16A and so applied. | R v ONA (2009) 24 VR 197 |
| Children / young persons | s 20C incorporates all the State sentencing options available for children. The phrase "child or young person" is not defined; those who can be dealt with in the Children's Court for State offences can also be dealt with there for Commonwealth offences. | s 20C |
| Reparation | s 21B enables a reparation order for loss suffered or expenses incurred "by reason of the offence". There must be a "close or significant connection" between the loss and the offence. Reparation is not part of the punishment but a means of making an order for compensation. The court may have regard to the personal circumstances and means of the offender. | R v Braham [1977] VR 104; Vlahov v Commissioner of Taxation (1993) 93 ATC 4501 |
Dispositions¶
Sentencing options (s 20AB and Part 1B)¶
• Dismiss the charge — s 19B the charge may be dismissed.
• Bond without conviction — s 19B not exceeding 3 years. The court can impose conditions as it sees fit, but cannot impose community work, and cannot impose a condition to pay money to a charity or court fund (Brittain v Mansour).
• Bond with conviction — s 20(1)(a) not exceeding 5 years. Cannot be a condition to pay money to a charity or court fund (Brittain v Mansour). Treatment conditions are available.
• Fine with conviction available.
• CCO with conviction — s 20AB available by virtue of s 20AB and regulation 6 of the Crimes Regulations.
• Imprisonment including an RRO (wholly suspended and partially suspended sentences).
s 19B is the ONLY non-conviction disposition for Commonwealth matters
For all other dispositions a conviction must be recorded. This follows from s 20AB, which sets out all other options besides dismissal and bond while referring to a person "convicted" before the court — with no mention of the possibility of not proceeding to conviction, as is present in s 19B.
Community correction orders for federal offenders¶
• Source: available by virtue of s 20AB and regulation 6 of the Crimes Regulations.
• Conviction: not available without conviction.
• Multiple offences: a single CCO can be imposed for multiple Commonwealth offences — s 4K(4).
• With a fine: can be in addition to a fine — s 20AB(4); and can be combined with reparation, restitution or compensation.
• With imprisonment: cannot be combined with a term of imprisonment for a single federal offence (Atanackovic). However, where an offender is sentenced for more than one federal offence, imprisonment can be imposed on one offence and a CCO on another.
• Breach (s 20AC): breach action taken by summons. Options: impose a pecuniary penalty not exceeding 10 penalty units (s 20AC(6)(a)); revoke the order and re-sentence (s 20AC(6)(b)); or take no action (s 20AC(6)©).
Restriction on imprisonment for minor property offences (s 17B): if a person is convicted of one or more s 17B offences with a total value of less than $2,000, and the person has not previously been sentenced to imprisonment, imprisonment cannot be imposed — unless there are exceptional circumstances.
Diversion: the source notes flag diversion as available for federal offences but the section is left blank ("MC NOTE: Fill this out bearing in mind it is in relation to Cth offences"). Treat as unresolved in these notes — verify before relying.
Imprisonment — release mechanisms¶
GATE 3 Imprisonment is a last resort (s 17A(1))
Where imprisonment is imposed there are three mechanisms for dictating the period: a recognizance release order (RRO), a non-parole period (NPP), or a straight sentence.
RRO or NPP? The threshold¶
| Total sentence (including an aggregate of that duration) | What the court must do | Provision |
|---|---|---|
| 6 months or less | RRO optional; NPP not available | s 19AC(3) |
| More than 6 months but not exceeding 3 years | must make a single RRO; NPP not available | s 19AC(1) |
| Exceeds 3 years (or any federal life sentence) | must fix a non-parole period; RRO not available | s 19AB(1) |
Parole for terrorism offenders — s 19ALB and Hatahet
Under s 19ALB the Attorney-General may refuse parole for terrorism-related offenders. But the High Court in The King v Hatahet [2024] HCA 23 definitively established that a sentencing judge must NOT take into account the potential lack of parole under s 19ALB when fixing either the head sentence or the non-parole period.
Recognizance release order (s 20(1))¶
• The mechanism: the court may order the offender be released — either with or without passing sentence, and either forthwith or after serving a further specified period of imprisonment — upon giving security (with or without sureties) that they will comply with certain conditions.
• Standard condition: that the offender be of good behaviour upon release, for up to 5 years.
• Other conditions: to make reparation, pay restitution or compensation, pay a financial penalty, or comply with such other conditions as the court thinks fit.
• Commonwealth child sex offences — s 20(1)(b): if any of the offences are Cth child sex offences, exceptional circumstances are needed for immediate release on an RRO (otherwise the offender must serve a further term of imprisonment).
• Mandatory supervision — s 20(1B): a condition must also be that the person be subject to the supervision of a probation officer and obey their lawful directions, and not travel interstate without their written permission.
Non-parole period¶
• Availability: generally only where the total effective sentence is more than 3 years.
• Supervision: greater supervision than an RRO.
• The alternative — a straight sentence: available where it is appropriate having regard to the nature and circumstances of the offending and the antecedents of the person; or the person is expected to be serving a State/Territory sentence on the day after the end of the federal sentence.
• Baseline scenario: the above assumes sentencing a federal offender who is not presently serving or subject to a federal sentence. There are other requirements where an offender is subject to another sentence — the setting of an NPP in federal sentencing can be complex and is often productive of error.
The NPP machinery — ss 19AB, 19AG, 19AH¶
• s 19AB — when the court must fix an NPP: where a person is convicted of a federal offence, or of 2 or more federal offences at the same sitting; the court imposes the sentence(s); and either (i) any of the sentences is a federal life sentence, or (ii) the sentences in the aggregate exceed 3 years; and when the court imposes the sentence(s) the person is not already serving or subject to a federal sentence.
• s 19AB(2) — while already in prison: the court must fix a single NPP in respect of all federal sentences where, while the person is in prison serving or subject to a federal sentence, the court imposes a further federal sentence, and the result is that the person is to serve or complete a federal life sentence or federal sentences the unserved portions of which in the aggregate exceed 3 years — and the person is not already subject to an NPP or RRO.
• s 19AB(3) — declining to fix: a court may decline to fix an NPP if satisfied it is not appropriate, having regard to (i) the nature and circumstances of the offence(s) and (ii) the antecedents of the person; or the person is expected to be serving a State or Territory sentence on the day after the end of the federal sentence (as reduced by any remissions under s 19AA).
• s 19AB(4) — reasons: if the court declines to fix an NPP it must state its reasons and cause them to be entered in the records of the court.
• s 19AC — the RRO rule: a court must fix an RRO where a person is convicted of a federal offence, or 2 or more at the same sitting, the sentence does not exceed the threshold, and the person is not already serving or subject to a federal sentence. It must be an RRO and NOT an NPP.
• s 19AD — existing NPP: if a person is serving a federal sentence subject to an existing NPP and the court imposes a further federal sentence, the court must — after considering the relevant circumstances including the existing NPP, the nature and circumstances of the offence(s) and antecedents — either confirm the existing NPP, fix a new single NPP for all federal sentences, or cancel the existing NPP and decline to fix a new one (DISTINGUISH FROM STATE). A new single NPP supersedes the existing one and must not allow release earlier than would have been the case without the further sentence (s 19AD(3)(a),(b)). Where this section applies the court must not make an RRO (s 19AD(4)). Reasons must be stated (s 19AD(5)).
• s 19AE — existing RRO: if a person is already serving and subject to an RRO and is resentenced for further offences, and is to serve a term in excess of 3 years, the court must impose a single NPP in respect of all federal sentences (s 19AE(2)(f)). A single NPP supersedes the existing RRO, and the person must not be released on parole earlier than they would have been had the further sentence not been imposed (s 19AE(4)(a),(b)).
• s 19AF — the ceiling: an NPP must end, or an RRO's pre-release period must end, not later than the end of the sentence (or the last to be served), as reduced by any remissions under s 19AA. This does not restrict the length of an NPP or pre-release period for a life sentence or sentences including one.
• s 19AH — failure to fix: where a court fails to fix, or properly to fix, an NPP or to make an RRO — (a) that failure does not affect the validity of any sentence; and (b) the court must, at any time, on application by the Attorney-General, the DPP or the person, set aside the defective order and fix an NPP or make an RRO according to law. A court is not taken to have failed where it made an RRO instead of an NPP or vice versa (s 19AH(2)). An application may be dealt with by the court whether or not constituted as it was when the person was sentenced (s 19AH(3)).
s 19AG — minimum non-parole for certain offences¶
| Element | Rule |
|---|---|
| Offences covered (s 19AG(1)) | (a) an offence against s 24AA (treachery); (b) a terrorism offence; © an offence against Division 80 (treason, urging violence and advocating terrorism or genocide) or Division 91 (offences relating to espionage and similar activities) of the Criminal Code. |
| The rule (s 19AG(2)) | the court must fix a single NPP of at least ¾ of — (a) the sentence for the minimum non-parole offence; or (b) if 2 or more sentences have been imposed for minimum non-parole offences, the aggregate of those sentences. The NPP is in respect of all federal sentences the person is to serve or complete. |
| Life sentences (s 19AG(3)(a)) | a sentence of imprisonment for life for a minimum non-parole offence is taken to be a sentence of 30 years. |
| Irrelevancies (s 19AG(3)(b)) | it does not matter whether the sentences were imposed at the same sitting; whether the convictions were at the same sitting; or whether all the federal sentences are for minimum non-parole offences. |
| Supersession (s 19AG(4)) | if the person was subject to an RRO, the NPP supersedes the order. |
| Override (s 19AG(5)) | ss 19AB, 19AC, 19AD, 19AE and 19AR have effect subject to this section. The effects include preventing a court from: confirming a pre-existing NPP (s 19AD(2)(d)); confirming an RRO (s 19AE(2)(d)); making an RRO under s 19AE(2)(e) or 19AR(2)(e); or declining to fix an NPP under s 19AB(3), s 19AC(1) or (2), or s 19AD(2)(f). |
Other NPP provisions¶
• s 19AJ — no mixing: this Division does not authorise a court to fix a single NPP, or make an RRO, in respect of both federal sentences of imprisonment and State or Territory sentences of imprisonment.
• s 19AK — deportation no impediment: where a person is convicted of a federal offence, a court is not precluded from fixing an NPP merely because the person is, or may be, liable to be deported from Australia.
• s 19AR — automatic revocation of parole: if a person serving a sentence is later sentenced to life or a term of more than 3 years (or aggregating more than 3 years), the parole order is taken to be revoked and the person becomes liable to serve each unserved sentence. The court must fix a new single NPP having regard to the total period the person is liable to serve. If the new sentence(s) and the unserved part aggregate 3 years or less, the court must not fix an NPP but may make an RRO, having regard to the total period (s 19AR(1)(e)).
• s 19AR(3) — State offences on parole: if a person serving a federal sentence is released on parole and later sentenced for State offences committed during the parole period, under s 19AQ the parole order is taken to have been revoked and the person becomes liable to serve the unserved part. If one of the outstanding sentences is a life sentence, or the unserved part aggregates more than 3 years, the court must fix a single new NPP for the outstanding sentence(s); if the unserved part is 3 years or less, the court must not fix an NPP but may make an RRO (s 19AR(3)(d),(e)).
• s 19AR(4)–(5): where the court would otherwise be required to fix an NPP under ss (1), (2) or (3), it is not required to do so if satisfied, having regard to the nature and circumstances of the offence(s) and the antecedents of the offender, that it is not appropriate. The court must state its reasons (s 19AR(5)).
Multiple offences, undertakings and victims¶
Commencement of sentence (s 19)¶
• The obligation: s 19 requires the court "by order to direct" when each federal sentence commences where more than one sentence is imposed.
• Already undergoing sentence: s 19(1).
• Multiple federal offences: s 19(2).
• Federal and State offences at the same time: s 19(3).
Aggregate sentences for Commonwealth offences¶
• On indictment: by application of s 9 Sentencing Act 1991 (Vic).
• In summary proceedings: by operation of s 4K(3) and (4) Crimes Act 1914.
• The pick-up: s 9 of the Sentencing Act 1991 is likely to apply to sentencing for Commonwealth offences by operation of s 68 Judiciary Act 1903. See Putland (2004) 218 CLR 174; [2004] HCA 8.
• The limit: it is not permissible to impose a single aggregate penalty for a federal offence and a State or Territory offence (Fasciale v R (2010) 30 VR 643 [27]).
Undertakings to co-operate — s 16AC¶
• The 'but-for' sentence: where a court is sentencing a federal offender who has undertaken to co-operate with law enforcement agencies in proceedings relating to any offence, the court, if it reduces the sentence, must state the 'but-for' sentence that would have been imposed.
• Failure to comply: where a person fails to comply with their undertaking, s 16AC(3) permits the CDPP to appeal against the sentence and have the 'but for' sentence imposed — s 16AC(4).
Victim impact statements — s 16AB¶
• Application: s 16AB applies in relation to victim impact statements made known to a court as described in s 16A(2)(ea).
• One per victim (s 16AB(2)): only one victim impact statement may be made for each victim of an offence, unless the court gives leave.
• No inference from absence (s 16AB(3)): no implication is to be drawn from the absence of a victim impact statement for a victim.
• Reading (s 16AB(4)): all or part of a VIS may be read to the court by or on behalf of the victim.
• Content limits (s 16AB(5)): a VIS is not to be read to the court, or otherwise taken into account, to the extent that it — (a) expresses an opinion about an appropriate sentence; (b) is offensive, threatening, intimidating or harassing; or © admitting it into evidence would otherwise not be in the interests of justice.
• Testing the facts (s 16AB(6)): the person convicted may test the facts in a VIS only (a) by way of cross-examining the maker; and (b) if the court gives leave to do so.
• Vulnerable persons (s 16AB(7)): for Part IAD (protecting vulnerable persons) — giving evidence includes giving a reading under ss(4), and a cross-examination includes a cross-examination under ss(6).
Breach of Commonwealth orders¶
Procedure and powers (ss 20A, 20AC)¶
• Procedure: under ss 20A and 20AC, information of the failure is brought to the attention of a Magistrate, who may issue a summons or warrant, then bail or remand the person, who is brought before the sentencing Magistrate/Judge to be dealt with.
• Threshold: the failure must be without reasonable cause or excuse.
• Breach of s 19B (no conviction): the order may be revoked, a conviction imposed and the offender re-sentenced, or the court may take no action (s 20A(5)(a)(i),(ii)). The court may also order any recognizance or surety be estreated and any other security enforced (s 20A(7)).
• Breach of s 20(1)(a): may impose a pecuniary penalty not exceeding 10 penalty units; revoke the order and re-sentence; or take no action (s 20A(5)(b)). The pecuniary penalty is deemed to be a fine (s 20A(9)).
• Breach of s 20(1)(b): may impose a monetary penalty of not more than $1,000; extend the period of good behaviour; amend and extend the order (not for more than 5 years — s 20A(5A)); revoke the order and make an order under s 20AB; revoke and re-sentence; or take no action (s 20A(5)©).
• Mandatory considerations (s 20A(6)): the court must take into account the fact that the order was made, anything done under the order, and any other order made in respect of the offence(s). There are rights of appeal (s 20A(8)).
• Breach of a s 20AB order (s 20AC): may impose a pecuniary penalty not exceeding 10 penalty units (s 20AC(6)(a)); revoke the sentence or order and re-sentence (s 20AC(6)(b)); or take no action (s 20AC(6)©). Deemed a fine (s 20AC(10)). The court must take into account the fact the sentence was passed, anything done under it, any fine or other penalty imposed, and any other order made (s 20AC(7)). Rights of appeal (s 20AC(8)).
Further authorities¶
s 16BA — taking other offences into account (omitted from the notes)¶
• The procedure: a document signed by the CDPP and the offender listing the other offences must be filed.
• The effect: the court may take the listed offences into account, but doing so does not increase the maximum penalty available for the primary offence (s 16BA(4)).
• Authorities: Azari v R [2018] NSWCCA 155; R v Lovi [2012] QCA 24; IM v R (2019) 100 NSWLR 110.
Refinements to the s 16A framework¶
• Family hardship — the federal/State divergence: under s 16A(2)(p) the common law "exceptional circumstances" test is NOT required — the statute simply requires the effect on family or dependants to be taken into account. This is a key contrast with Victorian law, where Markovic demands exceptional circumstances. Authorities: Totaan v R (2022) 108 NSWLR 17; R v Ceissman [2001] NSWCCA 73; R v Sinclair (1990) 51 A Crim R 418.
• General deterrence: accommodated via s 16A(1) and s 16A(2)(k) (adequate punishment) as well as being expressly listed in s 16A(2)(ja). Authorities: Aitchison v R [2015] VSCA 348; Kamay v R (2015) 47 VR 475; DPP (Cth) v Garside (2016) 50 VR 800; Lazarus v R [2019] NSWCCA 214.
• s 16A(2AAA) is mandatory: failure to apply it vitiates the sentence — Darke v R [2023] NSWCCA 52.
• Mandatory minimums as a yardstick: Hurt v R; Delzotto v R (2024) 98 ALJR 485 established that the minimum sentence acts as a "yardstick" for the synthesis — the court calculates a prima facie sentence using the minimum as a guidepost before applying any s 16AAC discounts. See also R v Stiller (2023) 14 QR 38; Glasheen v R [2023] NSWCCA 191.
• Fact-finding: Savvas v R (1995) 183 CLR 1; Weininger v R (2003) 212 CLR 629; R v Kane [1974] VR 658; Garcia v R [2015] NSWCCA 145.
• General federal principles: Wong v R (2001) 207 CLR 584; Bui v DPP (Cth) (2012) 244 CLR 638; Johnson v R (2004) 78 ALJR 616; Mok v DPP (NSW) (2016) 257 CLR 402.
• Totality: Mill v The Queen (1988) 166 CLR 59; Postiglione v R (1997) 189 CLR 295; Atai v R [2018] NSWCCA 302; Haak v R [2019] NSWCCA 28.
• Consistency: Barbaro v The Queen (2014) 253 CLR 58; MacNeil-Brown (2008) 20 VR 677; DPP v Weybury [2018] VSCA 120; Dirbass v R [2021] VSCA 272; Su v R [2019] NSWCCA 207.
• Guilty plea: DPP (Cth) v Thomas (2016) 53 VR 546; Waugh v R (2013) 38 VR 66; Perri v R [2017] VSCA 89; Nipoe v R [2018] VSCA 137; Kalofolias v R [2019] VSCA 308; DGF v R [2019] WASCA 4.
• Cooperation / s 16AC: DPP (Cth) v Couper [2019] VSCA 72; R v Tae [2018] NSWCCA 29; Dagher v R [2017] NSWCCA 258; R v Cartwright (1989) 17 NSWLR 243; Isaac v R [2018] NSWCCA 195.
• Bonds and State orders: Cobiac v Liddy (1969) 119 CLR 257; Commissioner of Taxation v Baffsky [2001] NSWCCA 332; R v Wall (2002) 71 NSWLR 692; Homewood v R [2018] NSWCCA 159; Fedele v R [2019] NSWCCA 286.
• Cumulation / commencement: Attorney-General v Tichy (1982) 30 SASR 84; R v Mantini [1998] 3 VR 340; R v Fulop [2009] VSCA 296; Ilic v R (2020) 103 NSWLR 430; DPP v Swingler [2019] VSCA 305.
Currency watch¶
• The King v Hatahet [2024] HCA 23 — s 19ALB (parole for certain terrorism offences) is not relevant to sentencing.
• ss 16AAA, 16AAB, 16AAC — mandatory minimums for Commonwealth child sex offences and repeat child sexual abuse offenders; the under-18 exclusion and the 25% / 25% / 50% reduction caps.
• s 16A(2AAA) — mandatory regard to the objective of rehabilitation for Commonwealth child sex offences, including allowing sufficient time in the sentence or NPP to undertake a program.
• s 20(1)(b), s 20(1B) — exceptional circumstances needed for immediate RRO release on Cth child sex offences, plus mandatory probation supervision and interstate travel restrictions.
• s 236B Migration Act 1958 — example of a federal offence carrying a mandatory term of imprisonment, contrary to the general federal position.