Sentencing for Commonwealth offences

Contributed by AndrewRobson and current to 27 July 2018

Relevant principles in sentencing

Section 16A of the Crimes Act 1914 (Cth) sets out the principles a court is to consider in deciding the sentence to impose for a federal offence such as social security fraud. These principles include:

• A court must impose a sentence or make an order that is appropriate in all circumstances of the offence;
• The nature and circumstances of the offence;
• If the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character to that course of conduct;
• Personal circumstances of any victim of the offence;
• Any injury, loss or damages resulting from the offence;
• Victim impact statements if relevant;
• The degree of remorsefulness shown by the offender through actions of reparations or in any other manner;
• The extent to which the person has failed to comply with court orders;
• If the person has pleaded guilty to the offence;
• The degree to which the person has co-operated with law enforcement;
• The detrimental effect that any sentence or order may have on a person;
• The need to ensure the person is adequately punished;
• The character, past offences, age, means and physical/mental condition of the person;
• The prospect of rehabilitation; and
• The probable effect that any sentence or order would have on the person’s family or dependents.

Section 16AC states that a sentence, order or non-parole period can be reduced in the event of the offender co-operating with law enforcement.

Section 16B states that the court must have regard to any other sentence, already imposed on the offender for any other federal or state offence, that the person has not yet served.

Sentencing options for federal offences

Discharge without conviction (s 19B Crimes Act 1904 (Cth))

In considering whether to discharge an offender without conviction under s 19B of the Crimes Act 1914 (Cth) the court is to consider:

• the personal circumstances of the offender;
• the extent to which the offence is trivial; and
• the extent to which the offence was committed under extenuating circumstances.

The court must then decide if it is inexpedient to inflict any punishment or to inflict any punishment other than nominal punishment or that it is expedient to release the offender on probation.

Extenuating circumstances excuse or lessen the offence. The court will consider all the factors relating to the offender and the offence in deciding whether to exercise the discretion. The consequences of a conviction are relevant. The need for deterrence is a factor against the making of a s.19B order. In addition, in consideration of a s19B order, the court will not consider any form of customary law or cultural practice (s19B(1A)).

Fine (ss 4AA and 4B Crimes Act 1914 (Cth))

By ss 4AA and 4B of the Crimes Act 1914 (Cth), imprisonment terms for Commonwealth offences are converted into maximum fines (deemed pecuniary penalties) that may be imposed by a court, if the contrary intention does not appear and if deemed appropriate in the circumstances calculated by applying the formula:

The maximum term of imprisonment (expressed in months) x 5 x the penalty unit ($170).

Therefore, 12 months of imprisonment converts to a maximum fine of $10,200.

Section 16C states that the court must consider a person’s financial circumstances before imposing a fine.

Recognizance (s 20(1)(a) Crimes Act 1914 (Cth))

A recognizance is a bond to comply with conditions including being of good behaviour for a period of up to five years and may include a fine but not a Community Based Order.

State sentencing options (s 20AB Crimes Act 1914 (Cth))

Section 20AB of the Crimes Act 1914 (Cth) provides that the court may sentence a Commonwealth offender to community service orders or similar sentencing alternatives available under State law.

Suspended sentence (s 20 Crimes Act 1914 (Cth))

The court may, if it thinks fit, sentence the person to imprisonment, but direct by order that the person be released upon giving security, either forthwith or after they have served a specified period of imprisonment and on the basis they abide by specified conditions as might be available under a s 20(1)(a) recognizance: s 20(1)(b) Crimes Act 1914 (Cth).

Imprisonment (s 17A Crimes Act 1914 (Cth))

A court shall not pass a sentence of imprisonment unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case: s 17A(1) Crimes Act 1914 (Cth).

A court shall not pass a sentence of imprisonment for offences relating to property, money or both whose total value is not more than $2,000 and the offender has not previously been sentenced to imprisonment unless there are exceptional circumstances: s 17B(1) Crimes Act 1914 (Cth).

The court may order cumulative, partly cumulative or concurrent sentences: s 19 Crimes Act 1914 (Cth).

Remissions and reductions in State law apply to Federal sentences other than non-parole and pre-release periods of recognizance release orders: s 19AA Crimes Act 1914 (Cth).

If a sentence is less than six months imprisonment, the court is not required to make a recognizance release order: s 19AC(3) Crimes Act 1914 (Cth).

If a sentence is greater than six months imprisonment, but less than three years the court must make a recognizance release order rather than set a non-parole period unless the court considers it inappropriate: s 19AC(1) Crimes Act 1914 (Cth).

If a sentence is greater than three years imprisonment the court must set a non-parole period or make a recognizance release order unless the court considers it inappropriate: s 19AB Crimes Act 1914 (Cth).

Reparation

A court can order the person to pay the Commonwealth an amount equal to any social security payment made because of an offence committed under s 21B of the SSA Act.

An order for reparation can be filed in a civil court and enforced as a judgment debt.

Under s 21B(1) of the Crimes Act 1914 (Cth), the court may order, in addition to any penalty imposed, the offender to pay reparation. A person is not to be imprisoned for a failure to pay an amount required to be paid under s 21B(1): s 21B(2).