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Last Updated: 8 February 2008
List of Subheadings:
State
and Territory Sentencing Options Under the Crimes Act 1914 (Cth)
Scope of s 20AB
- Options Not Available
- Ancillary Sentences Available
-- The Meaning of a Similar Sentence
or Order
-- Distinguishing between s 20(1)(a) and s 20AB
- Extent of Application of State and Territory Laws
-- The Effect of s 20AB(1A)
- Variation and Cancellation
Breach of a s 20AB Sentence or Order
-- Factors to be Taken into Account
Appeal
Related Links:
Conditional
Release
Fines
Options Without Proceeding to Conviction
Commentary on State and Territory Sentencing Options Under the Crimes Act 1914 (Cth)
Section 20AB(1) makes available to judges sentencing federal offenders certain State and Territory sentencing options. These options include:
- a community service order; or
- a work order; or
- a sentence of periodic detention; or
- an attendance centre order; or
- a sentence of weekend detention or an attendance order.
Other sentencing alternatives which the court is permitted to impose on federal offenders are prescribed by regulation: Crimes Regulations 1900 (Cth) reg 6.
Section 20AB applies only to participating States and Territories: see s 3B(2).
Scope of s 20AB
When sentencing a federal offender, a court of a participating State or Territory may impose on the person a sentence which is available under the law of that State or Territory provided that it is:
- a sentencing option listed under s 20AB(1); or
- a sentencing alternative prescribed under the Crimes Regulations 1900 (Cth) reg 6; or
- a sentencing option that is a 'similar sentence or order' to the ones contained in s 20AB or listed under the regulations: see below.
Sentencing alternatives other than those listed above are not available.
For a minimum non-parole offence mentioned in s 19AG (an offence against s 24AA, a terrorism offence, an offence against Division 80 or 91 of the Criminal Code) the court is not permitted to pass a sentence, or make an order, that involves detention or imprisonment: s 20AB(6).
Under s 20AB(4) the court may, in addition to passing a sentence or making an order under s 20AB(1), do all or any of the following:
- impose any fine or pecuniary penalty: s 20AB(4)(a); and/or
- make a reparation/restitution or compensation order: s 20AB(4)(b); and/or
- make any other order that the court is empowered to make: s 20AB(4)(c)
provided that, in respect of the offence committed, the court is empowered to make such an order.
Note: when acting under s 20AB(4), care must be taken to ensure both consistency and proportionality in sentencing. [1]
Where the court passes a sentence or order under s 20AB(1), the court shall explain to the person:
- the purpose and effect of the proposed sentence or order: s 20AB(2)(a);
- the consequences of breach of the order: s 20AB(2)(b); and
- that, where applicable, the proposed sentence or order may be revoked or varied: s 20AB(2)(c).
Orders under s 20AB(1) must be reduced to writing as soon as practicable: s 20AB(5).
The Meaning of a 'Similar Sentence or Order'
Under s 20AB(1), the court may make a similar sentence or order to a sentence or order prescribed in s 20AB(1) or listed in the Crimes Regulations 1900 (Cth) reg 6.
In DPP (Cth) v Costanzo, the Supreme Court of Queensland stated that whether a sentencing alternative is a similar sentence or order under the Act is:
a question of degree, which must be considered in the context of the legislation as a whole, and in particular Pt 1B, and in the light of the legislative purpose to extend sentencing options. [2]
In that case, the Court found that there is a requirement of finality for orders made under s 20AB(1). The interim or provisional nature of an Intensive Drug Rehabilitation Order meant that an IDRO did not fall within the meaning of a 'similar sentence or order' in s 20AB.
Distinguishing Between s 20(1)(a) and s 20AB
Care must be taken to impose orders under the correct provision.
Certain sentencing alternatives may not be imposed as a condition of a recognizance release order under s 20(1)(a)(iv). However, such sentences may be passed under s 20AB(1) to the extent that the sentencing option is provided for under this provision.
For example, in the ACT a community service order was found to be an invalid condition of a s 20(1)(a) recognizance release order. However a community service order could have been validly imposed under s 20AB: see Dowling v Hamlin [2006] ACTSC 117.
Extent of Application of State/Territory Laws
Under s 20AB(3), where a sentence or order is made under s 20AB(1), the State or Territory laws with regard to that sentencing option apply, so far as they are capable of application and are not inconsistent with the laws of the Commonwealth. Fox and Freiberg state, for example, that:
under the Crimes Act 1914 (Cth) s 20AB(1) a community based order may only be imposed on a federal offender in Victoria on recording a conviction, even though under State law it can be used as a non-conviction sanction. [3]
This is because under federal law, no sentence may be passed on an offender who is not convicted. See Options Without Proceeding to Conviction.
The nature and use of orders will differ between jurisdictions, including the criteria that a court will use in determining whether a particular order under s 20AB(1) is appropriate. [4] In relation to the latter, the court must have regard to the general sentencing factors in s 16A(1)-(3): s 16A(3).
The Effect of s 20AB(1A)
Section 20AB(1A) provides that a court imposing a sentence or order under s 20AB(1) is not required to apply State and Territory laws that require the making of another order before such a sentence can be imposed, for example that a suspended prison term be imposed prior to the making of the alternative sentencing order. [5]
In R v Togias, the NSW Court of Criminal Appeal stated that in relation to a sentence of periodic detention imposed under s 20AB:
s 20AB(1A) did not mean that periodic detention could be imposed for a sentence longer than three years; but [the Court] did not hold that the provision was not effective to take away the necessity of first fixing an appropriate term of imprisonment before considering whether it should be served by way of periodic detention. Thus I accept that, in the case of Commonwealth offences, the Court can consider directly whether a three year sentence of periodic detention is the preferable option. [6]
Orders made under s 20AB(1) may be varied or revoked in accordance with the law of the State or Territory that applies to an order made under the section: ss 20AB(3), 20AC(9).
Breach of s 20AB Sentence or Order
A breach of an order or sentence made under s 20AB is governed by the Crimes Act 1914 (Cth) s 20AC and not the usual State or Territory law.
Note: the court is not prevented from making an order under s 20AB(1) on the grounds that the action the court may take against a federal offender for failure to comply is, or may be, inconsistent with the action a State or Territory court is empowered to take against a State or Territory offender for failure to comply : s 20AB(1B).
Procedure to be followed where there is failure to comply
Procedure relating to the issuing of summons or to the issuing of a warrant for the apprehension of the person for failure to comply with a s 20AB(1) order are detailed in s 20AC(2) - s 20AC(5).
Action that may be taken for failure to comply
Options available to the court when sentencing a person for failure to comply with any condition of a s 20AB(1) order are contained in s 20AC(6).
Where an offender, without reasonable cause or excuse, fails to comply with any requirements of an order made under s 20AB, the court may:
- impose a pecuniary penalty not exceeding 10 penalty units: s 20AC(6)(a); or
- revoke the sentence and re-sentence the offender: s 20AC(6)(b); or
- take no action: s 20AC(6)(c).
Note: the provisions governing enforcement and recovery of a pecuniary penalty imposed under s 20AC(6)(a) are the same as those which apply to fines imposed following conviction for a federal offence: s 20AC(10). See Fines.
Factors to be taken into account
Under s 20AC(7), in dealing with an offender for breach of a s 20AB sentence or order, the court shall, in addition to any other matters the court considers relevant, take into account:
- the fact that the sentence was passed or the order was made: s 20AC(7)(a); and
- anything done under the sentence or order: s 20AC(7)(b); and
- any fine, pecuniary penalty or other order made in respect of the offence: s 20AC(7)(c).
Appeal
A decision made under s 20AC(6) is subject to the same right of appeal as it would have been if the court had passed that sentence immediately upon conviction: s 20AC(8).
Footnotes
[1] See Commonwealth Director of Public Prosecutions, Federal Sentencing in Victoria, February 2007, 33.
[2] [2005] QSC 079, [23].
[3] R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999), [8.401].
[4] Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [7.117].
[5] Explanatory Memorandum, Crimes Legislation Amendment Bill (No 2) 1989 (Cth) 36.
[6] [2002] NSWCCA 363, [23]. See also Australian Law Reform Commission, Sentencing of Federal Offenders, Issues Paper 29, (2005) [7.111].