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Part IB of the Crimes Act 1914 (Cth)

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Last Updated:8 February 2008

List of sub-headings:

Options Without Proceeding to Conviction under the Crimes Act 1914 (Cth)
Scope of s 19B
Section 19B Order Unavailable
-Applying s 19B
---Exercising Discretion under s 19B
- Factors for Consideration
---Character, antecedents, age, health or mental condition
---Trivial Nature of Offence
---Extenuating Circumstances
-Issues of Expediency
- Customary or Cultural Practice and s 19B
Scope of s 19B(1)(d) Order and Recognizance
- Good Behaviour
- Conditions
--- Invalid Conditions
- Determining the Security
- Length of Time
- Payment of Debts, Compensation or Restitution
Breach of Conditions
Right of Appeal
Variation and Cancellation of Orders
States and Territories

Commentary on Options without Proceeding to Conviction under the Crimes Act 1914 (Cth)

Under s 19B(1) where the court is satisfied that the federal offence is proved, the court is empowered to either:

• dismiss any charge without recording a conviction: s 19B(1)(c); or
• conditionally discharge a person without recording a conviction: s 19B(1)(d)

Note: Under the Crimes Act 1914 (Cth) 'conviction only' is not available when sentencing a federal offender: see Darter v Diden [2006] SASC 152, [16].

Conviction is seen as a form of punishment in itself, leading to potentially significant legal, and other, consequences for the convicted offender. [1] The power that the court retains to dismiss an offender without recording a conviction is recognition of this. This was observed in Collector of Customs v Tallerman and Co. Pty Ltd by the New South Wales Court of Criminal Appeal which, when discussing s 19B of the Crimes Act 1914 (Cth), stated:

One of the significant concomitants of a provision of this nature is that a dismissal under it entitles the party having the benefit of such dismissal to go forward without a conviction having been recorded against him... The dismissal is no mere technicality- it is a substantive dismissal. It contains no element of conviction and hence no element of sentence. [2]

However, an offender who receives the benefit of a s 19B order does not escape all legal consequences. If an offender who has previously been subject to dismissal under s 19B appears before the court for having again committed the same offence, they are likely to be considered a repeat offender for the purposes of sentencing. [3]

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Section 19B orders unavailable

A s 19B order to dismiss charges without proceeding to conviction is not available for certain offences against the Migration Act 1958 (Cth): see ss 232A; 233A; 233B; 233C.

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Scope of s 19B

Under s 19B(1)(b) where a federal charge is proved against an offender and the court is satisfied:

• having regard to the character, antecedents, age, health or mental condition of the person: s 19B(1)(b)(i) (see below); or
• the trivial nature of the offence: s 19B(1)(b)(ii) (see below); or
• the extenuating circumstances under which the offence was committed: s 19B(1)(b)(iii) (see below),

that it is:

• inexpedient to inflict any punishment, or
• inexpedient to inflict any punishment other than a nominal punishment, or
• expedient to release the offender on probation

then the court may:

• under s 19B(1)(c) dismiss the charges in respect of which the court is satisfied; or
• under s 19B(1)(d) discharge the person without conviction, conditional upon the person giving security to be of good behaviour for up to 3 years, the payment of restitution/compensation or costs (if any), and compliance with any other condition the court sees fit to impose. See below for further discussion of conditional discharge under s 19B(1)(d).

The court must explain, or cause to be explained, any such order to the person who will be subject to it in language likely to be readily understood by the offender: s 19B(2). The order must be reduced to writing and a copy given to the person: s 19B(4).

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Applying s19b

The discretion under s 19B(1)(c), (d) to dismiss the charge, or charges, is only available if the court is satisfied that the charge is proved: see Lanham v Brake (1983) 34 SASR 578, 580 (Cox J).

Ordering the dismissal of charges or the discharge of the person under s 19B(1) requires the application of a two stage test:

1. The court must have regard to the factors in s 19B(1)(b), including:

• character, antecedents, age, health or mental condition (s 19B(1)(b)(i)), or
• whether the offence was trivial in nature (s 19B(1)(b)(ii)), or
• the existence (if any) of extenuating circumstances at the time the offence was committed (s 19B(1)(b)(iii))
  
  to determine whether the discretion to dismiss is enlivened.
  

2. If the discretion is enlivened, then the court must consider whether any of the factors, taken singularly or in combination, would render it inexpedient to inflict any punishment/any punishment other than a nominal punishment, or expedient to release the offender on probation.

For discussion of the two stage test see: Commissioner of Taxation v Baffsky [2001] NSWCCA 332, [1]; Moreland v Snowdon [2007] WASC 137, [37]; The Chief Executive Officer of the Australian Customs Service v Nair [2007] SASC 183, [17]; Hamilton v Commission for Taxation (Cth) [2007] SASC 165, [8]; Perkins v Commissioner of Taxation [2006] NTSC 66, [20]; Commissioner of Taxation v Doudle [2005] SASC 442, [13]; Elder v Shojaee [2005] SASC 285.

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Exercising discretion under s 19B

The use of the s 19B discretion should be exceptional. [4]

The power under s 19B(1) to dismiss the charges against an offender should be exercised with 'compassion and imagination, as well as with wisdom and prudence': Uznanski v Searle (1981) 26 SASR 388, 390.

In determining whether to exercise the discretion under s 19B it is relevant for the court to have regard to the gravity of the offence, as indicated, in part, by the intent of the legislature in passing the Act. This issue was discussed in Cobiac v Liddy by Windeyer J, who stated:

Any court that has power to extend mercy to such an offender ought gravely to hesitate and weigh the matter well before doing so ... [But] [t]he whole history of criminal justice has shewn that severity of punishment begets the need of a capacity for mercy. The more strict a rule is made, the more serious become the consequences of breaking it, the less likely it may be that Parliament would intend to close all avenues of exception... It is that a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice. [5]

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fACTORS FOR CONSIDERATION

Section 19B(1)(b) lists the factors for consideration by the court in exercising the discretion to release an offender without recording a conviction.

The wording of s 19B(1)(b) suggests that the grounds listed in paras (i), (ii) and (iii) are available in the alternative: see Re Stubbs (1947) SR NSW 329; Cobiac v Liddy (1969) 119 CLR 257, [275] (Windeyer J).

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Section 19B(1)(b)(i): Character, Antecedents, Age, Health or Mental Condition

According to Lord Goddard CJ the word 'antecedents' is as wide as can be conceived. [6] Antecedents should be construed to include a broad range of factors relevant to the circumstances of the particular offender:

... the word antecedents includes all aspects, favourable and unfavourable, of an offender's background and past life, including his or her personal, family, social and employment circumstances. It can include a person's current way of life and his or her interaction with the lives and welfare of others. Any matters proximate to the offender's character, conduct or way of life can relate to antecedents. [7]

Although the factors that the court can consider as antecedents are broad they are not unlimited. The effect of a sentence on an offender's dependants is not usually relevant. However, in certain limited circumstances, the effect that sentencing the offender to imprisonment will have on the offender's dependants may be a relevant factor for consideration as to the expediency of a sentence of imprisonment:

The hardship caused to others by a sentence of imprisonment, however, is not generally (although it may be in exceptional cases) a relevant consideration for the sentencing judge... Nevertheless there are matters arising out of the dependency of the other person which may form part of the offender's antecedents. He is entitled to credit for the self-sacrifice and unselfishness involved in his care for another. The domestic background is undoubtedly part of the antecedents. The distress which he will experience in leaving the dependent person uncared for is also to be considered. Although not part of the offender's antecedents, the impact of imprisonment on the dependent person has a bearing on the expediency of sending the offender to prison. [8]

Other factors, personal to the offender, can be relevant to the exercise of the s 19B discretion depending on the relationship of that factor to both the circumstances of the offender, and the circumstances of the offence. For example, in Cobiac v Liddy Barwick CJ and Kitto and Owen JJ observed that:

Age in this context is a relative matter, to all the circumstances which exist or are about to exist.[9]

For a discussion of age as a relevant factor under s 19B see Lanham v Brake (1983) 34 SASR 578, [589] (Cox J); see also Moss v Mulholland [1994] TASSC 159 .

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Section 19B(1)(b)(ii): Trivial Nature of the Offence

The trivial nature of an offence is to be determined by reference to both the gravity of the offence as indicated, inter alia, by the statutory penalty range, and by the particular circumstances of the individual case before the Court:

Triviality must be ascertained by reference to the conduct which constitutes the offence for which the offender is liable to be convicted and to the actual circumstances in which the offence is committed. It was erroneous to ascertain the triviality of the offence by reference simply to the statutory provision which prescribes the maximum penalty. [10]

See also Williams v May [1908] VLR 605, [608]; Lanham v Brake (1983) SASR 578, [584]; Jones v Morely (1980) 29 SASR 57, [64]; Canterbury City Council v Saad [2001] NSWLEC 31, [21].

Usually an offence considered 'trivial' will be minor or technical in nature with a low degree of culpability, often committed through inadvertance or lack of intention. [11]

Even though an offence may be of a serious nature, the particular circumstances of the offending may justify the exercise of the s 19B discretion. In relation to a similarly worded NSW provision, Windeyer J observed in Cobiac v Liddy:

But recognising the offence as serious, and that a conviction of it must bring a heavy penalty upon the offender, is not to say that such an offender can never be dealt with under the Offenders Probation Act.[12]

An offence that is typical of the class prescribed or an offence that is deliberate will generally not be considered trivial. In discussing the meaning of 'trifling' under s 75(2) of the Justices Act 1921-1980 (SA) Mitchell J stated:

An offence is not trifling if it is a typical offence of the class proscribed. Where the breach is deliberate it can rarely be characterized as trifling. [13]

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Section 19B(1)(b)(iii): Extenuating Circumstances

On its own, the fact that an offender is a first-time offender of generally good character will not usually be enough to justify the use of s 19B.

Section 19B will usually only be invoked where the circumstances of the offending are atypical, or where the personal circumstances of the offender are unusual: see Hamilton v Commissioner for Taxation (Cth) [2007] SASC 165, [9]. As Jacobs J observed in Kelton v Uren:

There must be something that clearly distinguishes the circumstances of the offence under consideration from the typical offence, or circumstances of an unusual nature personal to the defendant, before [section 19B] can be properly invoked in dealing with this particular offence. [14]

In Moreland v Snowdon, the exercise of the discretion under s 19B(1) was not justified because:

in the respondent's case there were no circumstances relating to the offending behaviour or to the respondent herself which took her case out of the ordinary offending of this nature. (emphasis added) [15]

Cases in which extenuating circumstances have been found include where there are compelling humanitarian reasons behind the action taken, [16] and where an indigenous offender, running a business for the first time, failed to lodge tax returns due to miscommunication with her book keeper. [17]

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Issues of Expediency

Under s 19B(1)(b) the court may discharge an offender or dismiss a person where any factor listed in paras (i)-(iii) exist to such an extent as to make it:

• inexpedient to inflict any punishment; or
• inexpedient to inflict any punishment other than a nominal punishment; or
• expedient to release the offender on probation

The factors outlined in s 19B(1)(b) must exist to such an extent as to support the exercise of leniency even where guilt is proved.

In discussing the issue of inexpediency in Cobiac v Liddy Windeyer J stated:

The magistrate must be of the opinion that the exercise of the power is expedient because of the presence and effect of one or more of the stated conditions.... They are not mere pegs on which to hang leniency dictated by some extraneous and idiosyncratic consideration. But they are wide words. None of the matters they connote is necessarily to be regarded in isolation from the others, or apart from the whole of the circumstances of the offender and the offence. [18]

Expediency follows its ordinary grammatical meaning of 'advantageous', 'desirable', 'suitable to the circumstances of the case'. [19] Whether it is inexpedient to inflict punishment on an offender will depend upon 'the whole of the circumstances of the offender and the offence'. Cobiac v Liddy [1969] HCA 26; [276]; see also Jones v Morely (1980) 29 SASR 57, [64]-[65].

In deciding whether to exercise the discretion under s 19B(1) the court must have regard to the gravity of the offence as indicated by legislative policy and the penalty range for the offence. This is particularly relevant for offences of strict liability:

The existence of only one of the factors provided for in s 19B(1)(b) may be sufficient to justify the court in concluding that any form of punishment would be inexpedient, but in my opinion, one would normally expect substantial reasons to exist before reaching such a conclusion in the case of offences of strict liability.[20]

In determining issues of expediency in relation to punishment under s 19B(1)(b) the court must also have regard to the general sentencing factors in s 16A. This includes a plea of guilty, the prospect of rehabilitation and the question of general deterrence: see Commissioner of Taxation v Baffsky [2001] NSWCCA 332, [2]; Perkins v Commissioner of Taxation [2006] NTSC 66, [23]; Crimes Act 1914 (Cth) s 16A(3).

For further discussions of these principles see Rehabilitation, Deterrence and Discounts for Guilty Pleas.

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Customary or cultural practice and s 19B

The extent to which the court may consider customary or cultural practice in exercising the s 19B power is limited under s 19B(1A).

Note: This provision was inserted into the Crimes Act 1914 (Cth) on 12 December 2006 under the Crimes Amendment (Bail and Sentencing) Act 2006.

See Aboriginal and Torres Strait Islanders and the Crimes Act.

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Scope of s 19B(1)(d) Order and Recognizance

A s 19B(1)(d) conditional release is the only option available to the court, other than outright dismissal of the charges, where a conviction is not recorded.

Under s 19B(1)(d) the court may exercise its discretion to discharge the person in respect of any charge or charges against the offender without proceeding to conviction upon the person entering into a recognizance.

Before imposing a bond without conviction on an offender under s 19B(1)(d) the court must be satisfied of the factors in paras (i)-(iii) and be satisfied that it is inexpedient to inflict any punishment/any punishment other than a nominal punishment on the offender, or that it is expedient to release the offender on probation: see above.

Under s 19B(1)(d) the court may order that the offender, upon giving security with or without sureties, be discharged without conviction contingent on compliance with conditions to:

• be of good behaviour for a period not exceeding 3 years: s 19B(1)(d)(i)
• make reparation or restitution, or pay compensation or costs: s 19B(1)(d)(ii)
• comply, for a period not exceeding 2 years, with other conditions as the court thinks fit to specify: s 19B(1)(d)(iii)

Note: there is no legislative option for a court to impose a fine or pecuniary penalty on an offender against whom a non-conviction order is recorded.

An offender must enter into a conditional release order voluntarily. In The Queen v Collins Bray CJ stated:

whatever else such a recognizance is, it is a contract, in the old terminology a contract of record... [I]t is not something which can be imposed on the convicted person against his will. He always has the option of entering into it or not. It is true, of course, that if he does not enter into it a worse fate may befall him. Nevertheless the choice is his and cases are not unknown of convicted persons refusing the recognizance and accepting the alternative. [21]

Accordingly, before making a conditional release order under s 19B(1)(d) the court is required to explain to the person the purpose and effect of the order, the consequences of breach of the order and the possibility that the recognizance may be varied or discharged: Crimes Act 1914 (Cth) s 19B(2) and s 20(2).

The court must also cause the order to be reduced to writing as soon as practicable: s 19B(4).

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Good Behaviour

Under s 19B(1)(d) a federal offender who is conditionally released without conviction must comply with the condition to be of good behaviour for a period not exceeding 3 years.

The requirement that an offender be of good behaviour means more than mere compliance with the law. [22]

The breach of the condition of 'good behaviour' must have some relationship to the original offence: see Devine v The Queen [1967] HCA 45, 515 (Windeyer J).

The condition of 'good behaviour' applies to the conduct of the offender beyond the State or Territory in which they were sentenced. In The Queen v Collins Bray CJ stated:

I see no reason at all to construe the words "to be of good behaviour" in s 4 of the Offenders Probation Act [NSW], wherever they appear, in any limited territorial sense. Neither the language nor the purpose of the section seems to me to require any such limitation. [23]

Other Conditions

The court can impose any condition is thinks fit to specify as a condition of a bond: s 19B. Any conditions, other than the condition to be of good behaviour, cannot exceed 2 years: s 19B(1)(d)(iii).

Whilst the Crimes Act 1914 (Cth) does not expressly limit the discretion of the court in imposing bond conditions under either s 19B or s 20, the power to impose conditions has been found to be broad but not unlimited. In R v Bugmy, Kirby J outlined the limitations on bond conditions:

First, the discretion as to conditions that may be attached to a bond is broad but not unlimited. The conditions must reasonably relate to the purpose of imposing a bond, that is the punishment of a particular crime. They must therefore relate either to the character of that crime or the purposes of punishment for that crime, including deterrence and rehabilitation.

Secondly, the conditions must each be certain, defining with reasonable precision conduct which is proscribed.

Thirdly, the conditions should not in their operation be unduly harsh or unreasonable or needlessly onerous. [24] (emphasis added)

In Williams v Marsh the court confirmed that the discretion of the court to impose conditions 'as it thinks fit' is limited and that conditions must have some connection to the offence for which they are imposed:

It will never be proper to impose conditions that will operate harshly or unreasonably, or which may fairly be thought to be merely intrusive or officious. Certainly they will need to be directly related to the offence which led to their imposition. [25]

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Invalid conditions

Conditions must not be incompatible with the provisions of other statutes, nor inconsistent with public policy. [26] However, for a condition to be invalidated for contravention of public policy, the court has stated that:

the existence and content of the policy should be clear beyond argument. Public policy can often be difficult to discern or define and as a basis for judicial decision making can give rise to too great a latitude for subjectivity. [27]

Bond conditions must be reasonable; they must not be illegal, impossible to fulfil or beyond the power of the court to impose: see R v Keur (1973) SASR 13, [15].

Conditions that are too uncertain to be enforced are oppressive, and therefore, invalid. [28] Bray CJ has challenged the validity of unusual conditions that are paternalistic and intrude into the defendant's private life: see Macpherson v Beath (1975) 12 SASR 174, [181]; Neil v Steel (1973) 5 SASR 67, [69].

To the extent that conditions held to be invalid are separate and independent, they will be severable from the recognizance and not invalidate the operation of legally imposed conditions contained therein. [29]

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Determining the Security

The bond amount will only be forfeited in the event of a breach of a condition of release. Thus, the amount of money payable upon breach must be sufficient to ensure compliance with the terms of the order. [30]

The amount required as security must be a 'just, proper and suitable sum'. Unless the sum to be imposed is a trivial amount, in the interests of natural justice a suitable sum should only be decided after investigation into the offender's means: see R v Central Criminal Court, ex parte Boulding 1 QB [813]; Williams v Marsh (1985) 38 SASR 313, [320].

Note: there is no available option under the Crimes Act 1914 (Cth) to impose a pecuniary penalty on an offender who is conditionally discharged under s 19B.

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Payment of debts, compensation or restitution

The Crimes Act 1914 (Cth) clearly provides for courts to attach conditions of restitution or reparation to conditional release orders: s 19B(1)(d)(ii).

Such a condition will not affect the right of the victim to make a civil claim for compensation or reparation. [31]

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Breach of Conditions

Section 20A outlines the power of the court to deal with a person who has been discharged pursuant to an order under s 19B(1) and who, without reasonable cause or excuse, fails to comply with a condition of the order.

• revoke the order, record a conviction for the original offence and deal with the person in the manner in which the person could have been dealt with for that offence if the s 19B(1) order had not been made: s 20A(5)(a)(i); or
• take no action: s 20A(5)(a)(ii).

Court proceedings to determine breach must comply with the requirements of natural justice and criminal standards of proof. [32] See also Leckie; Ex parte Felman (1977) 18 ALR 93.

A magistrate before whom information is laid about the failure of an offender to comply with a condition of the recognizance may order the offender to be summonsed or arrested and to be brought before the court by which the order was made, provided that the complaint is made before the expiration of the recognizance period: Crimes Act 1914 (Cth) s 20A(1A).

Where the breach of a condition of the order constituted a commission by the person of an offence, the information can be laid at any time: Crimes Act 1914 (Cth) s 20A(1A).

The court may also order that any recognizance or surety be estreated and any security enforced: s 20A(7).

Under the Crimes Act 1914 (Cth) s 20A(6), in determining the action to be taken by the court against the offender for the breach of the conditional release order, the court is to take into account:

• the fact that the order was made: s 20A(6)(a);
• anything done under the order: s 20A(6)(b); and
• any other order made in respect of the offence or offences: s 20A(6)(c).

In Cornelius Stevens v Emily Mccallum, the ACT Court of Appeal has explained that sentencing following a breach of recognizance involves two discretionary decisions:

The first is whether the breach is of such gravity and consequence as to require estreatment of the recognizance and, hence, reconsideration of the original sentence. That is a process not unlike that of breach of contract. Is the breach sufficiently serious that the agreement should be regarded as ended?

The next is a consideration, in the light of the breach, of the original sentence. [33]

Sentences imposed on those who breach a condition of a recognizance order should adequately represent the seriousness with which such conduct is regarded. The New South Wales Court of Criminal Appeal in Morris (Unreported, Court of Criminal Appeal, 14 July 1995) cited in Doyle (1996) 84 A Crim R 287, 290 stated that:

[A sentence for breach] may not, of course, exceed that sentence which is appropriate to the objective circumstances; but it should usually reflect the fact that by his rejection of the trust placed in him by the previous sentencing court, the offender will have shown a lack of remorse and cast doubt upon his prospects of rehabilitation.

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Right of Appeal

A defendant who is subject to an order made under s 19B(1) has the same rights of appeal on the ground that he or she was not guilty of the offence concerned that he or she would have had had they been convicted: s 19B(3).

Conditional orders under ss 19B(1) and 20(1) and revised orders under s 20A following a breach are all subject to appeal: ss 19B(3), 20(3), 20A(8).

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Variation and Cancellation of Orders

After giving the required notice, the Crown, the offender, a surety or a probation officer may apply to the court to discharge or vary the recognizance order: Crimes Act 1914 (Cth) s 20AA(1).

Under s 20AA(3) the court may vary the order by:

• extending or reducing the duration of the recognizance;
• altering the conditions of the recognizance;
• reducing liability to make reparation or restitution, or to pay compensation, costs or a pecuniary penalty; or
• altering the manner in which any reparation, restitution, compensation, costs or penalty is to be made.

Note: A recognizance ordered under s 19B(1) cannot be extended beyond 3 years from the date of the original order: Crimes Act 1914 (Cth) s 20AA(4).

Sureties are not bound by the altered conditions unless they are willing to undertake to be so: Crimes Act 1914 (Cth) s 20AA(9), s 20AA(10).

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STATES AND TERRITORIES

Section 19B prevails over similar legislation in States and Territories.

In contrast to the provisions of the Federal Act, the sentencing options under most State and Territory legislation allow the court to pass certain sentences on an offender notwithstanding the court's decision to record a non-conviction order. [34]

All states and territories have provisions allowing for the court to make non-conviction orders in similar circumstances to those contained in the federal legislation. The legislation in some jurisdictions encompasses broader factors than those contained in s 19B of in the Crimes Act 1914 (Cth).

For example in Tasmania, Victoria and Queensland, the court is required to consider the offender's economic or social well-being as well as the impact a conviction would have on the offender's employment prospects. These factors are cumulative, in distinction to those in the Federal Act which are disjunctive: see Sentencing Act 1997 (Tas) s 9(c); Sentencing Act 1991 (Vic) s 8(1)(c) and Penalties and Sentences Act 1992 (Qld) s 12(2)(c).

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Footnotes

[1] See K Warner, Sentencing in Tasmania (2nd ed, 2002), 186; also Australian Law Reform Comission, Criminal Records, Discussion Paper 25, AGPS, Canberra 1985; Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [7.76]; R Edney and M Bagaric, Australian Sentencing Principles and Practice, 2007, 283.

[2] [1975] 2 NSWLR 832, [834].

[3] Cobiac v Liddy (1969) 119 CLR 257, [276] (Windeyer J).

[4] Matta v Australian Competition and Consumer Commission [2000] FCA 729, [3] (French J).

[5] [1969] HCA 26; [2] (Windeyer J).

[6] R v Vallet [1951] 1 All ER 231, 232.

[7] The Chief Executive of the Australian Customs Service v Nair [2007] SASR 183, [21].

[8] Jones v Morely (1980) 29 SASR 57, [63]-[64].

[9] Cobiac v Liddy [1969] HCA 26; [11].

[10] Walden v Hensler [1987] HCA 54, [25].

[11] Crafter v Schubert [1934] SASR 84, [86]; Mancini v Valledonga (1981) 28 SASR 236.

[12] [1969] HCA 26, [2] (Windeyer J); see also W v Marsh (1983) 35 SASR 333, [338].

[13] Mancini v Valledonga (1981) 28 SASR 236, [239]- The Justices Act uses the word 'trifling', considered synonymous with 'trivial'. See W v Marsh (1983) 35 SASR 333, [337]; see also Siviour-Ashman v Police [2003] SASC 29, [25] (Doyle CJ); see also R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999), 576.

[14] (1981) 27 SASR 92, [93].

[15] [2007] WASC 137, [37].

[16] Mancini v Vallelonga (1981) 28 SASR 236.

[17] Perkins v Commissioner of Taxation [2006] NTSC 66.

[18] Cobiac v Liddy (1969) 119 CLR 257, [276].

[19] Riddle v Riddle [1952] HCA 12, [222] discussing the meaning of expedient in Trustee Act 1925-1942 (NSW) s81; cited in The Royal Melbourne Hospital v Equity Trustees Limited [2007] VSCA 162, [153]-[154] discussing the meaning of 'expedient' under the Trustee Act 1958 (Vic).

[20] O'Brien v Norton- Smith (Mr) Pty Ltd (1995) 83 ACrimR 41, [44].

[21] (1976) 12 SASR 498, [500] (Bray CJ).

[22] R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999), [7.304].

[23] (1976) 12 SASR 498, [501].

[24] [2004] NSWCCA 258, [61].

[25] (1985) 38 SASR 313, [316]; see also Isaacs v McKinnon (1949) 80 CLR 502.

[26] R v Theodossio (1998) 104 A Crim R 367, [370].

[27] R v Theodossio (1998) 104 A Crim R 367, [371]-[2]; see also Isaacs v McKinnon (1949) 80 CLR 502.

[28] Macpherson v Beath (1975) 12 SASR 174, [180].

[29] R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999), [7.306].

[30] R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999), [7.303].

[31] K Warner, Sentencing in Tasmania (2nd ed, 2002), 143.

[32] R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999), [7.504].

[33] [2006] ACTCA 13, [93]-[94].

[34] Sentencing Act 1991 (VIC) s 7(1)(f); Sentencing Act 1997 (TAS) s 7; Penalties and Sentences Act 1992 (QLD) s 29 , s 43A, s 34, s 44, s 90, s 100 ; Sentencing Act (NT)s 7; Criminal Law (Sentencing) Act 1988 (SA) s 16, s 18,s 39.