Last Updated: 12 November 2010

List of subheadings:

Course of Conduct under the Crimes Act 1914 (Cth)
Scope of s 16A(2)(c)

Commentary on Course of Conduct under the Crimes Act 1914 (Cth)

Section 16A(2)(c) requires a sentencing court to take into account evidence that the offence forms part of a course of criminal conduct:

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Scope of s 16A(2)(c)

The consideration of whether an offence formed part of a ‘course of conduct’ has been interpreted as a reference to the totality principle.

In the federal sentencing decision of Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629, Kirby J stated at [57]:

That paragraph [s 16A(2)(c)] is an attempt to express in the language of the Crimes Act the totality principle...

In the federal decision of Putland v The Queen [2004] HCA 8; (2004) 218 CLR 174, Gummow and Heydon JJ discussed the function of s 16A(2)(c). Citing Ryan v The Queen [1982] HCA 30; (1982) 149 CLR 1, they observed at [54]:

Reference was made in argument to par (c) of s 16A(2) of the Crimes Act. This provision perhaps reflects what earlier had been said by Brennan J in Ryan v The Queen:

"When an accused person is convicted on two or more counts regularly joined, the trial judge is entitled to assess an appropriate overall sentence having regard to the entire course of criminal conduct which constitutes the several elements of the offences of which the accused is convicted."

See further: Totality Principle

Courts have suggested that a course of criminal conduct may demonstrate an offender to be a repeat offender and therefore not entitled to certain leniency. In CEO of Customs v Lin [2007] WASC 314, Templeman J stated at [105]:

[16A(2)(c)] requires account to be taken of the course of conduct, 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 is certainly the case here. Each offence is necessarily more serious than the offence which preceded it because the first defendant became a repeat offender to an ever-increasing extent. There is every reason to assume that the first defendant would have continued his course of conduct...

A similar approach was adopted in CEO of Customs v Coulton [2005] NSWSC 869, where Simpson J observed at [33]:

...it is of some significance that the defendant was, by the time of the second and third importations, a repeat offender. That, in itself, modifies any expectation of leniency he might otherwise have harboured. It is a factor relevant to be taken into account pursuant to s16A(2)(c) of the Crimes Act.

See further: Character and Antecedents.

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Last Updated: 12 November 2010