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Commonweath offences

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
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.

Social security offences

The Commonwealth deals with many social security offences and if such offending is encountered it is extremely important to note that:

  • courts view such offending very seriously;
  • even though the person has an unblemished record, he or she may be facing immediate imprisonment;
  • some offences charged under the Social Security (Administration) Act 1999 (Cth) carry a maximum penalty of twelve months imprisonment.

Some examples of social security offences with maximum penalties of twelve months imprisonment or more are:

  • Failure to comply with a requirement to give information or produce a document [see s 197].
  • Failure to give end of employment statement [see s 200].
  • Unauthorised access to information [see s 203].
  • Unauthorised use of protected information [see s 204].
  • Soliciting disclosure of protected information [see s 205].
  • Offering to supply protected information [see s 206].
  • False statement in connection with claim or hardship request [see s 212; s 217 for penalty].
  • False statement to deceive or affect rates [see s 213; s 217 for penalty].
  • False statement or document [see s 214; s 217 for penalty].
  • Obtaining payment that is not payable [see s 215; s 217 for penalty].
  • Payment obtained through fraud or impersonation [see s 216; s 217 for penalty].

Pleas for social security charges

The following factors have been considered to be relevant to social security fraud:

Other Commonwealth matters

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:

  • The sentence or order must be of a severity appropriate in all the circumstances of the offence [see Crimes Act 1914 (Cth) s 16A(1)].
  • The nature and circumstances of the offence and any other offences to be taken into account [see Crimes Act 1914 (Cth) ss 16A(2)(a) and 16A(2)(b)].
  • Whether the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character [see Crimes Act 1914 (Cth) s 16A(2)(c)].
  • The personal circumstances of any victim, or any injury, loss or damage resulting from the offence [see Crimes Act 1914 (Cth) ss 16A(2)(d) and 16A(2)(e)].
  • The degree to which the person has shown contrition for the offence through reparation [see Crimes Act 1914 (Cth) s 16A(2)(f)].
  • The extent to which the person has failed to comply with pre-trial disclosure, or ongoing disclosure, in proceedings relating to the offence [see Crimes Act 1914 (Cth) s 16A(2)(fa)].
  • Whether the person has pleaded guilty to the charge, the timing of the plea, and the degree to which this resulted in any benefit to the community, victim or witness to the offence [see Crimes Act 1914 (Cth) s 16A(2)(g)].
  • The degree of cooperation with law enforcement agencies in the investigation of the offence or of other offences [see Crimes Act 1914 (Cth) s 16A(2)(h)].
  • The deterrent effect that any sentence or order under consideration may have on the person [see Crimes Act 1914 (Cth) s 16A(2)(j)].
  • The need to ensure that the person is adequately punished for the offence [see Crimes Act 1914 (Cth) s 16A(2)(k)].
  • the character, antecedents, age, means, and physical or mental condition of the person; [see Crimes Act 1914 (Cth) s 16A(2)(m)].
  • Whether the person's standing in the community was used by the person to aid in the commission of the offence [see Crimes Act 1914(Cth) s 16A(2)(ma)].
  • the prospect of rehabilitation of the person [see Crimes Act 1914 (Cth) s 16A(2)(n)].
  • the probable effect that any sentence or order under consideration would have on any of the person's family or dependants. [see Crimes Act 1914 (Cth) s 16A(2)(p)].

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:

  • when making an order- to impose any conditions about rehabilitation or treatment options; and
  • in determining the length of any sentence or non-parole period- to include sufficient time for the person to undertake a rehabilitation program.

[see Crimes Act 1914 (Cth) s 16A(2AAA)]

General sentencing options for Commonwealth offences

RESEARCH THE ISSUES
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.

Discharge without recording a conviction

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:

  • dismiss a charge [see s 19B(1)(c)]; or
  • discharge a person without recording a conviction, upon the person entering into a bond with certain conditions, including good behaviour, reparation, supervision by a probation officer, or other conditions [see s 19B(1)(d)].

Record a conviction and release on a bond

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)].

Community service order (CSO)

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).

Recording a conviction and imposing a sentence of imprisonment

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:

  • record a conviction, and impose a sentence of imprisonment; and
  • direct the prisoner be released forthwith upon entering into a bond (with the conditions specified for a s 20(1)(a) bond); or
  • direct the prisoner to serve a specified portion of the sentence (in accordance with s 19AF) [see ss 20(1)(b) and 19AF(1)].

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.

Breach of recognisance release orders

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 serving or subject to another sentence

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 sentenced to Commonwealth and State offences

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)].

Setting non-parole periods for State and Commonwealth offences

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].

Additional requirements for Commonwealth child sex offences

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)].

Global penalty

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].

Reparation orders

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].

Commonweath offences  :  Last Revised: Mon May 21st 2012