The Commonwealth Director of Public Prosecutions prosecutes a wide range of offences on behalf of the Commonwealth. Commonwealth sentencing is different from State sentencing and can be complex, especially when combined with State sentences. It is unlikely that a duty solicitor will appear on a Commonwealth matter, other than to conduct a bail application. However, for completeness, a basic discussion of some Commonwealth offences in relation to sentencing procedures follows [see also Courts and Jurisdiction chapter].
| CONTACT THE PROSECUTOR |
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| Commonwealth matters can be problematic, and sometimes cannot be dealt with quickly due to their complex nature. Contacting the Commonwealth prosecutor is a good starting place. However, it is better for duty solicitors to avoid Commonwealth pleas unless the offence is minor or is a clear case for a fine or community service. |
The Commonwealth deals with many social security offences and if such offending is encountered it is extremely important to note that:
Some examples of social security offences with maximum penalties of twelve months imprisonment or more are:
The following factors have been considered to be relevant to social security fraud:
The relevant considerations a court must take into account when sentencing in relation to Commonwealth matters depend to a large extent on the nature of the offence, and are not unlike sentencing considerations for State matters. The factors relevant to sentencing in such matters include:
Commonwealth child sex offences
In determining the sentence to be passed, or the order to be made, in respect of any person for a Commonwealth child sex offence, in addition to other matters, the court must have regard to the objective of rehabilitating the person, including by considering whether it is appropriate, taking into account such of the following matters as are relevant and known to the court:
[see Crimes Act 1914 (Cth) s 16A(2AAA)]
| RESEARCH THE ISSUES |
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| As already indicated, Commonwealth sentencing can be complex, and a perusal of the Crimes Act 1914 (Cth) is a good starting point, as it deals with general sentencing law. Reference should then be made to the particular Act under which the charge has been laid. |
The four sentencing options available under the Crimes Act 1914 (Cth) are set out below.
Where a court finds a charge is proved, and considers it not appropriate to inflict a punishment (or it is only appropriate to inflict a nominal punishment) the court may dismiss the charge or discharge the person without conviction on condition they enter into a good behaviour bond and pay restitution, reparation, compensation or prosecution costs [see Crimes Act 1914 (Cth) s 19B(1)]. The power to make an order in accordance with s 19B can only be used where certain criteria are met. The court must have regard to the character, antecedents, age, health or mental condition of the person, and the extent the offence is of a trivial nature or committed under extenuating circumstances [see s 19B(1)(b)]. A fine cannot be imposed when a s 19B order is made, nor can a community service order be made in relation to a s 19B order. To summarise, s 19B empowers a court to:
A sentencing court may convict a person of an offence, and without imposing a further penalty allow that person to enter into a recognisance release order (good behaviour bond) for a period not exceeding five years [see Crimes Act 1914 (Cth) s 20(1)(a)(i)]. This may include an order for compensation, reparation, restitution or prosecution costs [see s 20(1)(a)(ii)]. This may also include an order for a pecuniary penalty (a fine) or an order for supervision for a maximum of two years [see ss 20(1)(a)(iii) and 20(1)(a)(iv)].
The sentencing court may order community service as a penalty after imposing a conviction [see Crimes Act 1914 (Cth) s 20AB]. There must be a conviction recorded before a CSO can be made. Under this provision a straight CSO can be imposed independent of any other penalty such as a s 20(1)(a) (see above) or s 20(1)(b) bond (see below).
The sentencing court may sentence the person to a period of imprisonment but direct the person be released forthwith after entering into a good behaviour bond and agreeing to comply with any orders such as payment of compensation, reparation, restitution or prosecution costs (this is the equivalent of suspending a sentence under state law) [see Crimes Act 1914 (Cth) s 20(1)(b)].
Alternatively, the court may sentence the person to a period of imprisonment and order that person be released after serving a specified period of the sentence in prison [see Crimes Act 1914 (Cth) ss 20(1)(b) and 19AF(1)]. The court must specify the pre-release period of the sentence (the equivalent of a State non-parole period), which must be actually served by the prisoner before the prisoner enters into a recognisance (the equivalent of a good behaviour bond) [see s 19AF(1)]. To summarise, section 20(1)(b) empowers a court to:
Commonwealth child sex offences
Sections 20(1)(b)(ii)-(iii) of the Crimes Act 1914 (Cth) outline further legislative requirements that must be satisfied, where at least one of the offences is a Commonwealth child sex offence.
The consequences of breaches of Commonwealth recognisance release orders (bonds) can be serious depending on the original sentence imposed [see Crimes Act 1914 (Cth) s 20A]. Court powers in relation to breaches of Commonwealth recognisance release orders range from taking no action, to revoking the order, re-sentencing for the offence and may include the imposition of pecuniary penalties [see s 20A].
Where the defendant is already serving or is subject to another sentence (whether through State or Commonwealth related offences), the subsequent Commonwealth sentence can be cumulative, concurrent or partly both [see Crimes Act 1914 (Cth) s 19(1)(a)]. Where a non-parole period applies with respect to the current sentence, the Commonwealth sentence commences immediately after the end of the current non-parole period [see s 19(1)(b)]. State non-parole periods must be kept entirely separate from Commonwealth pre-release periods [see s 19AJ].
Where the defendant is to be sentenced to imprisonment for Commonwealth and State offences, the Commonwealth sentence can be cumulative, concurrent or partly both [see Crimes Act 1914 (Cth) s 19(3)(c)].
Where a defendant is to be sentenced to imprisonment for both State and Commonwealth offences, a single non parole period cannot be set encompassing both offences. Where a non-parole period applies with respect to the State offence, the Commonwealth sentence commences immediately after the end of that non-parole period, however some concurrency is allowable [see Crimes Act 1914 (Cth) s 19(3)(d); R v Richardson [2010] SASC 88].
An order must not have the effect that a term of imprisonment imposed on a person for a Commonwealth child sex offence be served partly cumulatively, or concurrently, with an uncompleted term of imprisonment, that is, or has been, imposed on the person for another Commonwealth child sex offence, or a State or Territory registrable child sex offence [see Crimes Act 1914 (Cth) s 19(5)].
This will not apply however if the court is satisfied that imposing the sentence in a different manner would still result in sentences that are of a severity appropriate in all the circumstances [s 19(6)]. The court must state and record its reasons for imposing the sentence in such a manner [s 19(7)].
The court can impose one global penalty for two or more offences against the same provision of a law of the Commonwealth [see Crimes Act 1914 (Cth) s 4K].
In many circumstances reparation orders are sought in relation to Commonwealth offences. These operate as final judgments enforceable in the civil jurisdiction and therefore no time to pay is required [see Crimes Act 1914 (Cth) s 21B].
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