The central sentencing principles in respect of federal offenders are set out in Part IB of the Crimes Act 1914 (Cth), and particularly in section 16A of the Act.
The overarching requirement for a court in sentencing a federal offender is set out in s 16A(1) of the Crimes Act 1914 (Cth), which provides:
(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.
Note: Minimum penalties apply for certain offences—see sections 16AAA, 16AAB and 16AAC.
Section 16A(2) provides a requirement for the Court to take into account certain matters when imposing a sentence features [including our commentary]:
(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
(a) the nature and circumstances of the offence;
Examples include: the extent of any planning or premeditation; degree of sophistication; danger or harm to others; any steps taken to avoid detection; the roles; duration of offending.
(b) other offences (if any) that are required or permitted to be taken into account;
(c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character–that course of conduct;
This of course, is relevant to the application of the principals of totality and relevant to the nature of the offending.
(d) the personal circumstances of any victim of the offence;
A specific Commonwealth Child Sexual Offence (an offence against Subdivision B of Division 272, Subdivision C of Division 471 or Subdivision F of Division 474 of the Code) committed on or after 23 June 2020 is required to take into account additional matters relating to the circumstances of the victim (so far as made known to the Court), including:
- The age and maturity of the person to whom the offence was committed;
- If that person was under 10 when the offence was committed, to be considered an aggravating factor; and
- The number of people involved in the commission of the offence.
For example, when the offence consists of online grooming of a child, the age and maturity would be relevant in assessing the seriousness of the offence.
(e) any injury, loss or damage resulting from the offence;
(ea) if an individual who is a victim of the offence has suffered harm as a result of the offence–any victim impact statement for the victim;
(f) the degree to which the person has shown contrition for the offence:
(i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or
(ii) in any other manner;
(fa) the extent to which the person has failed to comply with:
(i) any order under subsection 23CD(1) of the Federal Court of Australia Act 1976 ; or
(ii) any obligation under a law of the Commonwealth; or
(iii) any obligation under a law of the State or Territory applying under subsection 68(1) of the Judiciary Act 1903 ;
about pre – trial disclosure, or ongoing disclosure, in proceedings relating to the offence;
(g) if the person has pleaded guilty to the charge in respect of the offence:
(i) that fact; and
(ii) the timing of the plea; and
(iii) the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence;
The utility of the plea of bringing the end criminal proceedings, sparing witnesses giving evidence, saving the community the cost of the trial.
(h) the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences;
Any cooperation prior to sentencing will be taken into account, however the assessment of any discount will be determined when having regard to all of the circumstances of the offence.
(j) the deterrent effect that any sentence or order under consideration may have on the person;
Evidence of the deterrent offence would have/has had on the offended must be demonstrated.
(ja) the deterrent effect that any sentence or order under consideration may have on other persons;
(k) the need to ensure that the person is adequately punished for the offence;
(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 by the person to aid in the commission of the offence–that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates;
This applies to offenders charged with or convicted on or after 20 July 2020 to capture circumstances where an offender’s professional or community standing was used as an opportunity to sexually abuse children. For example, a medical professional or celebrity using their status.
(n) the prospect of rehabilitation of the person;
(p) the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.
In 2022, a 5 member bench of the Court of Criminal Appeal in Totaan v R (2022) 108 NSWLR 17, overruled the authorities which held that hardship must rise to the level of “exceptional” before being given a specified weight, or resulting in a substantial reduction of sentence, were also wrongly decided and should not be followed.
In order to demonstrate this effect, it has to be more than possible, i.e. an additional effect which would result from a particular sentence.
The above list is not exhaustive of what a sentencing judge can take into account on sentence. However, for consideration to be had by the Court, evidence must be put before the Court and may be demonstrated through:
- Affidavits tendered on sentence
- Evidence called from the witness box
- Psychological or psychiatrist reports
- Supporting secondary material
- Medical records
Commonwealth Child-Sex Offences
Section 16A(2AAA) of the Crimes Act 1914 requires the court when determining the sentence or imposing an order, to have regard to the objective of rehabilitating the offender.
This includes by considering whether it is appropriate to take into account any of the following matters:
(a) when making an order –to impose any conditions about rehabilitation or treatment options;
(b) in determining the length of any sentence or non – parole period — to include sufficient time for the person to undertake a rehabilitation program.
In Darke v R [2022] NSWCCA 52, the New South Wales Court of Criminal Appeal held that the failure of the sentencing judge to refer to or to give effect to s 16A(2AAA), in a case to which it applied, was an error which required that the offender be resentenced.
Again, evidence must be demonstrated through the material tendered in Court for the Court to have consideration of this sub-section.
Should you or someone you know be charged with a federal offence, it is essential you receive legal advice from an experienced criminal defence lawyer at any early stage. To discuss your options, call Hugo Law Group in Sydney, NSW (02 9696 1361), Canberra (02 5104 9640), Perth (08 6255 6909) or Northern NSW (02 5552 1902) to make an appointment to speak to one of our lawyers.
