57. Commonwealth Sentencing — The Sentencing Sequence (Cth)¶
Scope and currency
Cheat sheet · federal offenders · Part IB Crimes Act 1914 (Cth)
Frame first — Part IB. This is the sentencing of a federal offender, governed by Part IB Crimes Act 1914 (Cth). State sentencing law applies only where it is "picked up" as surrogate federal law by the Judiciary Act 1903 (Cth) (ss 68, 79, 80) and is not inconsistent with the Crimes Act. Overarching obligation: a sentence "of a severity appropriate in all the circumstances of the offence" (s 16A(1)), taking into account the s 16A(2) matters that are relevant and known, by instinctive synthesis (Markarian v The Queen (2005) 228 CLR 357) — not a two-stage mathematical method. Work the gates in order.
The sentencing sequence¶
GATE 0 Child / young person filter (s 20C)
Is the offender a child or young person? → Yes: s 20C lets the offender be tried, punished or dealt with as if the offence were a State/Territory offence. The entire adult Part IB disposition set is swapped for the State youth menu (Children's Court forum; youth justice / supervision / residential orders), so far as not inconsistent with Commonwealth law. Sentence on the youth track — do not run the adult sequence below. → No: go to Gate 1.
GATE 1 Jurisdiction & summary sentencing caps (ss 4G, 4H, 4J)
Indictable or summary? Can a court of summary jurisdiction deal with it? Classification by maximum: punishable by imprisonment > 12 months = indictable (s 4G); ≤ 12 months or no imprisonment = summary (s 4H) — unless a contrary intention appears. Summary determination of an indictable offence: available where punishable by ≤ 10 years, with the consent of both prosecutor and defendant (s 4J(1)); for property of value ≤ $5,000, on the prosecutor's request alone (s 4J(4)). Excluded for Criminal Code Division 80 (except Subdiv CA), Division 82, Division 91 and Division 92 (s 4J(7)).
| On summary determination | Maximum the court may impose | Provision |
|---|---|---|
| Offence punishable ≤ 5 years | 12 months / 60 penalty units / both | s 4J(3)(a) |
| Offence punishable > 5 but ≤ 10 years | 2 years / 120 penalty units / both | s 4J(3)(b) |
| $5,000-property offence under s 4J(4) | 12 months / 60 penalty units / both | s 4J(5) |
Caps bind the court, not the offence. The s 4J caps are a jurisdictional limit on the court, not a substitute maximum. Objective seriousness is still measured against the offence's statutory maximum (s 16A(2)) — a sentence at the cap can be appropriate for an offence not in the worst category. The court may not exceed what could be imposed on indictment, nor impose both imprisonment and a fine where only one is available on indictment (s 4J(6)).
GATE 2 Method & disputed facts (Markarian; Olbrich)
Method — instinctive synthesis (Markarian v The Queen (2005) 228 CLR 357): identify all relevant factors, evaluate their significance, make a single value judgment. It is an error of principle to fix a numerical "starting point" on the objective facts and then add or subtract numerical discounts for subjective matters. Disputed facts (R v Olbrich (1999) 199 CLR 270): a fact adverse to the offender must be proved by the prosecution beyond reasonable doubt; a fact in the offender's favour (mitigation) by the offender on the balance of probabilities. → Neither established: the fact drops out — the judge sentences on what is known. An adverse fact not proved beyond reasonable doubt is not resolved for the offender (Olbrich).
GATE 3 Mandatory-minimum check — Cth child sex offences (ss 16AAA–16AAC)
Is it a Commonwealth child sex / child sexual abuse offence carrying a statutory minimum? Minimums: s 16AAA sets minimums of 5 to 7 years for specified high-level offences; s 16AAB(2) sets minimums of 1 to 4 years for a current offence where the person has a prior child sexual abuse conviction (federal, State or Territory, whenever it occurred). → Offender under 18 at the time of the offence: the minimum does not apply (s 16AAC(1)) — a complete answer. Check this first. → Adult: below the minimum only for a guilty plea (≤ 25%) and/or past cooperation (≤ 25%), combined maximum 50% (s 16AAC(2)–(3)). No other matter qualifies — and a s 16AC future undertaking cannot reduce below the minimum. Also have regard to the rehabilitation objective (s 16A(2AAA)). → Effect on last resort: a statutory minimum displaces s 17A (Bahar v R (2011) 45 WAR 100; Hurt v R; Delzotto v R (2024) 98 ALJR 485).
Currency — confirm if conduct straddles the date
Minimums (ss 16AAA, 16AAB, 16AAC) and s 16A(2AAA) were inserted by the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth): minimums apply to conduct on/after 23 June 2020; s 16A(2AAA) to sentencing on/after 20 July 2020.
GATE 4 Select the disposition — imprisonment is last resort (s 17A)
Is a non-custodial or partly-custodial outcome appropriate? Last resort (s 17A(1)): the court must not impose imprisonment unless satisfied, after considering all other available sentences, that no other sentence is appropriate (reasons recorded, s 17A(2)). Work down the ladder before reaching imprisonment.
Disposition ladder¶
| Disposition | Key limit | Provision |
|---|---|---|
| s 19B — dismissal / good-behaviour bond | The only non-conviction route. Bond ≤ 3 yrs (≤ 2 yrs if other conditions imposed). No unpaid community work; no payment to a charity or court fund — in substance a fine (Brittain v Mansour). | s 19B |
| s 20(1)(a) — release without passing sentence | Conviction recorded. Recognizance to be of good behaviour up to 5 years; conditions (reparation; pecuniary penalty; other ≤ 2 yrs). | s 20(1)(a) |
| s 20AB — community correction order | On conviction only; may combine with a fine; cannot be combined with imprisonment on a single federal count — use an RRO (Atanackovic v The Queen (2015) 45 VR 179). | s 20AB; regs 6, 15 |
| s 21B — reparation | Not punishment, not part of the sentence; loss "by reason of the offence"; means may be considered. | s 21B |
| s 17B — minor property (≤ $2,000) | If no prior imprisonment, the court must not imprison unless exceptional circumstances. | s 17B |
Diversion — supported only as "probably" available
There is no stand-alone Commonwealth diversion scheme. A State diversion program that imposes no sentence (e.g. s 59 Criminal Procedure Act 2009 (Vic)) is, per the source material, "probably picked up" via Judiciary Act ss 68/79 (adults) or s 20C (child) — treat as persuasive, not settled.
GATE 5 Fix the release mechanism — RRO vs NPP (ss 17A, 19AC, 19AB, 19AG)
Imprisonment imposed — which release mechanism is mandatory? (Most error-prone area — work it in order.) Turn on the head / aggregate sentence, then check for a minimum non-parole offence override. An RRO (s 20(1)(b)) directs release on a recognizance; an NPP fixes the minimum to serve before parole (parole is not automatic — A-G decides, s 19AL).
Release mechanism at a glance¶
| Head / aggregate sentence | Mechanism | Provision | Note |
|---|---|---|---|
| ≤ 3 years (not already serving a federal sentence) | Single RRO; must NOT fix an NPP | s 19AC(1) | Release immediate or after a specified pre-release period |
| > 3 years, or any federal life sentence | Must fix a single NPP; RRO unavailable | s 19AB(1) | May decline an NPP ("straight sentence") if not appropriate, or if a State sentence follows the next day — s 19AB(3); reasons recorded |
| Minimum non-parole offence: treachery (s 24AA), terrorism, Div 80 (excl Subdiv CA), intentional espionage (ss 91.1(1)/91.2(1)) — NOT Div 92 foreign interference | NPP ≥ ¾ of head sentence; overrides RRO / declining an NPP | s 19AG(2),(5) | Life deemed 30 yrs → minimum NPP 22 yrs 6 mths |
Two classic errors. (1) Fixing an NPP where the sentence is ≤ 3 years — it must be an RRO (s 19AC). (2) Granting an RRO or declining an NPP on a s 19AG offence — s 19AG(5) forbids it. The source material corrected a common assumption: s 19AG does not capture foreign interference (Div 92).
GATE 6 Multiple offences, commencement & time in custody (ss 19, 4K, 16E)
Commencement (s 19): the court must "by order direct" when each federal sentence commences — "concurrent / cumulative" is insufficient. No federal sentence may commence later than sentences already fixed; the first federal sentence after a State NPP commences immediately after it ends (ss 19(1)(b), 19(3)(d)). Aggregation: no single aggregate may span a federal and a State/Territory offence — separate sentences (Fasciale v R (2010) 30 VR 643; Ilic v R (2020) 103 NSWLR 430). Across federal offences: summary s 4K(3),(4); on indictment, s 9 Sentencing Act 1991 (Vic) is picked up via Judiciary Act s 68(1) (Putland v R (2004) 218 CLR 174). Pre-sentence detention (s 16E): adopts State law — in Victoria the s 18 Sentencing Act 1991 declaration; otherwise s 16E(3) requires the court to take the custody into account. Possible deportation is no impediment to fixing an NPP (s 19AK; R v Shrestha (1991) 173 CLR 48).
Overlays — shape the synthesis, not which disposition / mechanism applies¶
• The s 16A(2) factors are the substance: weigh those that are relevant and known (nature/circumstances; victim; injury/loss; contrition & reparation; plea (g) and its benefit; cooperation (h); deterrence; adequate punishment; character/antecedents/age/means/condition (m); standing-in-community as aggravation (ma); rehabilitation (n); effect on family (p)).
• Customary law / cultural practice bar (s 16A(2A)): must not be taken into account to excuse, lessen or aggravate the offending; narrow sacred-sites exception (s 16A(2AA)).
• Common law survives (non-exhaustive list): proportionality (a ceiling — never disproportionate to objective gravity); totality (s 16B); parity; delay routed through s 16A(2)(m), no automatic discount.
• Boulton out, Verdins in: the Boulton CCO guideline does not apply federally (Atanackovic); the Verdins mental-impairment principles do, via s 16A(2)(m).
• Comparatives and prosecutor's role — no numbers: comparable cases are yardsticks revealing principle, not a numerical range; avoid tables / bar charts of sentences (Hili v The Queen (2010) 242 CLR 520; R v Pham (2015) 256 CLR 550). The prosecutor must not proffer a quantified range; it may indicate the type of disposition (Barbaro v The Queen (2014) 253 CLR 58; Matthews v R (2014) 44 VR 280).
• Victim impact statement (s 16AB): one per victim unless leave (2); may be read (4); no inference from absence (3); no opinion on sentence and nothing offensive/intimidating (5); challenge only by leave-only cross-examination of the maker (6).
• Future-cooperation undertaking (s 16AC): state that the sentence is reduced for the undertaking and specify the "but-for" sentence (s 16AC(2)) — keep it separate from any plea discount; reviewable on later failure (s 16AC(3),(4)).
• Factors outside s 16A (via Judiciary Act s 80): SORA registration consequences are excluded (R v ONA (2009) 24 VR 197); extra-curial punishment only if causally related and more than an ordinary incident; community protection tethered to proportionality.
Currency watch¶
• 23 June 2020 — Cth child-sex mandatory minimums (ss 16AAA, 16AAB, 16AAC) apply to conduct on/after.
• 20 July 2020 — s 16A(2AAA) rehabilitation objective applies to sentencing on/after.
• 2013 amendment — s 21B reparation test broadened to loss "by reason of the offence" (pre-2013: "direct result" / "close or significant connection").