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Part IB of the Crimes Act 1914 (Cth)

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Last Updated: 30 August 2009

List of subheadings:

Crimes Act 1914 (Cth)
Specific Deterrence
- Where Specific Detterence May Carry Less Weight
General Deterrence
- General Deterrence and s 16A(2)
- Where General Deterrence May Carry Less Weight
- General Deterrence and Specific Circumstances

Commentary on Deterrence under the Crimes Act 1914 (Cth)

In sentencing a federal offender regard should be had to both specific and general deterrence. Specific deterrence aims to dissuade the individual offender from committing further offences by imposing sanctions which demonstrate the adverse consequences of criminal activity. General deterrence aims to deter prospective offenders by instilling the fear of incurring similar sanctions.[1]

Specific deterrence is identified in s 16A(2)(j) of the Crimes Act 1914 (Cth). General deterrence is not recognised in s 16A(2). Despite this, courts have repeatedly stated that general deterrence remains a relevant factor in sentencing federal offenders.[2]

In DPP (Cth) v El Karhani (1990) 51 A Crim R 123, 130-131 the Court said:

Notwithstanding the absence from the checklist in s 16A of the Act of any reference to general deterrence, such a matter must be taken into account in determining the sentence to be passed…The language of the Act gives no support for the proposition that general deterrence has been removed from the list of criteria to be considered by a court sentencing a person for a Federal offence.

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Specific Deterrence

Section 16A(2)(j) of the Crimes Act 1914 (Cth) states that:

A broad approach to specific deterrence was adopted by Simpson J in Comptroller-General of Customs v Parker [no 3] [2006] NSWSC 1269, [21]:

...it was also argued that specific deterrence is not an issue. This, it was said, was because the defendant’s conduct was committed as a result of his holding a licence issued under the Customs Act, something he is unlikely ever to be granted again. Thus, he will not have the opportunity to engage in this particular conduct, and so specific deterrence can be put to one side. In my opinion that approach takes too narrow a view of specific deterrence as one of the considerations relevant to sentence. Specific deterrence goes further than deterring the offender from repeating precisely the conduct the subject of the offence or conviction. It has a broader purpose. It is also to deter the particular offender from engaging in any other form of dishonesty; in this case, particularly, dishonesty relevant to the revenue.

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Where specific deterrence may carry less weight

Mental Health Condition

Specific deterrence may carry less weight where the offender is suffering from a mental health condition.

In R v Z [2006] NSWCCA 342; (2006) 167 A Crim R 436, Beazley JA (with whom Howie J agreed) observed at [48]:

In circumstances where mental illness is not sufficient to constitute a defence, it remains a relevant consideration in the sentencing process. Typically, its relevance relates to the emphasis that will be given to deterrence: see R v Israil [2002] NSWCCA 255, in which Spigelman CJ noted at [18] and [22] that mental illness may mean that a court will place less emphasis on both specific and general deterrence. In R v Tsiaras [1996] 1 VR 398 at 400 the Victorian Court of Appeal said that “specific deterrence may be more difficult to achieve and is often not worth pursuing as such” where the offender is affected by a serious mental illness.

In Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385, Steytler P (with whom McLure JA agreed) noted at [54]:

…much depends upon the nature and effect of the illness. The notion of personal deterrence assumes some rational analysis or reasoning in the course of comparing the likely gains from the crime against the prospect, and likely severity, of punishment, and, where the illness affects the person’s ability to make that analysis, there is no justification for affording that consideration the same measure of significance as it might have in the case of a well person.

See also Du Randt v The Queen [2008] NSWCCA 121, [24]-[37].

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Corporate Offence

Specific deterrence may carry less weight in relation to certain white collar offences.

In R v Fodera [2007] NSWSC 1194, [27], Latham J cited as apposite the following observations of the Victorian Court of Criminal Appeal in DPP v Bulfin [1998] 4 VR 114:

Discovery and punishment make it unlikely that the white collar criminal will reoffend, not least because the offender will probably never again be given the opportunity to do so. In these circumstances specific deterrence will often not feature largely in sentencing consideration, and the prospects of rehabilitation will generally be very high.

Specific deterrence was deemed unnecessary in sentencing several persons convicted of offences under the Corporations Act where those offenders were aged in their late sixties and had already received lengthy bans from managing a corporation: R v Hall (No 2) [2005] NSWSC 890, [118]; R v Loiterton [2005] NSWSC 905; (2005) 54 ASCR 728, [188].

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General Deterrence

general deterrence and S 16a(2)

There is no reference to general deterrence in s 16A(2). However, courts have repeatedly stated that general deterrence remains a relevant consideration in sentencing for Commonwealth offences.[3]

In DPP (Cth) v El Karhani (1990) 51 A Crim R 123, reference to ‘any other matters’ in s 16A(2) was considered to clearly demonstrate that the legislature was not seeking, by the list, to exclude other relevant matters.[4] The Court considered one such relevant matter to be the general deterrent effect of the sentence.[5]

In Putland v The Queen [2004] HCA 8; (2004) 218 CLR 174, [12], Gleeson CJ noted AT [12] that:

In particular, it [Pt 1B Crimes Act 1914] makes no reference to general deterrence, a matter so obviously relevant to sentencing that the statement of matters to which regard must be had is manifestly incomplete.

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Where general deterrence may carry less weight

Mental Health Condition

While general deterrence is always a relevant consideration, it may carry less weight where an offender is suffering from a mental health condition: Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385, [55].

In Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385, [52], the Court regarded it as settled that ‘serious psychiatric illness not amounting to insanity is relevant to sentencing.’ The Court at [52] cited the Victorian Court of Appeal in R v Tsiaras [1996] 1 VR 398, 400, that:

…a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence.

In R v Z [2006] NSWCCA 342; (2006) 167 A Crim R 436, Beazley JA (with whom Howie J agreed) cited at [70] R v Wiskich [2000] SASC 64, [62] regarding the significance of a mental disorder to general deterrence:

A sentencing court must determine the impact of the disorder upon both the offender’s thought processes and the capacity of the offender to appreciate the gravity and significance of the criminal conduct … if an offender acts with knowledge of what is being done and with knowledge of the gravity of the criminal conduct, the importance of the element of general deterrence otherwise appropriate in the particular circumstances is not greatly affected. The gravity of the criminal conduct is also an important consideration …

In R v Tsiaras [1996] 1 VR 398, 400, the Victorian Court of Appeal observed that the offender may not be an appropriate vehicle for general deterrence even where the mental health condition has supervened since the commission of the offence. This statement has been cited in the federal case Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385, [52].

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Age

In some cases 'age' may affect the weight given to deterrence. For youthful offenders, rehabilitation may be the dominant consideration in sentencing. In LAL v R PN [2007] NSWSC 445, McClellan CJ summarised the approach of the law to the sentencing of young offenders:

The law recognises that when sentencing young offenders considerations of punishment and general deterrence should generally be regarded as subordinate to the need to foster rehabilitation. However, this principle will have less weight where the offending behaviour is such that the young person has conducted themself in a way that an adult does. When extreme violence has been used or the crime otherwise exhibits activities normally associated with an adult the need to protect the community may mean that deterrence and retribution must be given greater weight than might otherwise be the case. Age will be less of a consideration as offenders approach the age of 18. [3]

See further Rehabilitation.

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GENERAL DETERRENCE AND SPECIFIC CIRCUMSTANCES

At common law, the circumstances of the offence may affect the weight given to general deterrence. Some circumstances have been identified and discussed below:

i) Breach of trust
ii) Circumstances of the victim
iii) Drugs
iv) Fraud on the Commonwealth
v) Integrity and Security of the Commonwealth
vi) Planning

For further commentary see R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999) [3.405]-[3.409]. In Salmon v Chute [1994] NTSC 21, [138], Kearney J of the Northern Territory Supreme Court cited with approval Professors Fox and Freiberg's statements on general deterrence in the first edition of this text (Sentencing: State and Federal Law in Victoria (1985) 446).

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i) Breach of trust

General deterrence has been given greater weight in circumstances involving breach of trust.

Courts have emphasised the importance of general deterrence as a sentencing factor in circumstances where the criminal conduct of executives or employees has involved a serious breach of trust.[6]

See R v Pantano (1990) 49 A Crim R 328, 330. Justice Wood of the New South Wales Court of Criminal Appeal held:

The commercial world expects executives and employees in positions of trust…to conform to exacting standards of honesty...Executives and trusted employees who give way to temptation cannot pass the blame to lax security on the part of management. The element of general deterrence is an important element of sentencing for such offences.

In Higgins v The Queen [2006] NSWCCA 38, the offender was convicted of dishonest conduct contrary to s 1041G of the Corporations Act 2001 (Cth) and fraudulent misappropriation contrary to s 178A of the Crimes Act 1900 (NSW). At first instance he was sentenced to eight years imprisonment with a non-parole period of five years. The offender appealed to the Court of Criminal Appeal. Dismissing the appeal, Spigelman CJ noted at [13]:

Of particular significance is the gross breach of trust involved both directly to each investor for whom he was an adviser and by purporting to act with the authority of a financial corporation in whom the investors would also have trust. The element of general deterrence is entitled to considerable weight in white collar crimes involving a breach of trust (see eg R v Glenister [1980] 2 NSLWR 597; R v Pantano (1990) 49 A Crim R 328 at 330).

See also R v Pantano (1990) 49 A Crim R 328, 330; R v Adler [2005] NSWSC 274; (2005) 53 ASCR 471, [47]; DPP (Cth) v Gaw [2006] VSCA 51, [8] (Callaway JA); DPP (Cth) v Page [2006] VSCA 224, [37] (Eames JA); R v Fodera [2007] NSWSC 1194; (2007) 65 ASCR 107, [59]; R v Lo [2007] NSWSC 105; (2007) 174 A Crim R 451, [49]-[50]; Bell v The Queen [2008] NSWCCA 206, [18]-[19].

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ii) Circumstances of the victim

General deterrence may be given greater weight if the offence was committed against a protected class of victim.

This reflects the common law's tendency to protect particular classes of persons. For example, in Attorney-General (Cth) v Thamm (1991) 57 SASR 83, [18] a case dealing with unlawful threats under the Criminal Law Consolidation Act 1934 (SA), Justices Legoe, Millhouse and Zelling AJ noted at [17] that:

... the need for deterrence are very important factors in sentencing offenders in respect of these types of offences… These offences were part of a calculated plan. They go to the fundamental basis of the Rule of Law and the administration of justice by judicial officers properly protected from threats to themselves or their families. The offences clearly called for a firm and deterrent sentence.

In Kaye v The Queen [2004] WASCA 227, the applicant was convicted of offering to assist a person to engage in an act of indecency on a person under the age of 16 outside Australia, contrary to s50DB(1) of the Crimes Act 1914 (Cth). McLure J agreed with Malcolm CJ and said of the sentence at [66]:

General deterrence is a weighty factor when dealing with offences relating to sexual conduct with children: Bell v R [2001] WASCA 40. Thus, the penalty should reflect the need for general deterrence, reinforced by the practical difficulties of detection because the acts of child molestation occur overseas.

See also R v Wicks [2005] NSWCCA 409, [39].

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iii) Drugs

The element of deterrence is an extremely important factor in sentencing for serious drug offences: R v Schofield [2003] NSWCCA 3, [162] (Carruthers AJ); Kauwenberghs v The Queen [2008] NSWCCA 98, [110].

In R v Bimahendali [1999] NSWCCA 409, [32], Wood CJ (with whom Sully and Simpson JJ agreed) emphasised the need for general deterrence in relation to serious drug offences, citing with approval the observations of Simpson J (with whom Meagher JA and Sperling J agreed) in R v Benais (1999) NSWCCA 236, [23-24]:

The escalation in drug use in this country is a matter of notoriety, as is the effect of drug use and abuse on the wider community. While minds may and do differ on policies that should be adopted in relation to drug use and on drug addiction there is, as I perceive it, less controversy about tolerance of imported drugs such as ecstasy.

Governments and government agencies that struggle to control the importation of drugs deserve the support of the courts. Their efforts are diminished where courts fail to give that support. To fail to give the necessary support is to undermine the efforts that have been made by governments and other agencies to control the spread of drug use.

See also R v Lau [2009] WASCA 99, [42]-[44] (Wheeler JA with whom Owen and Miller JA agreed).

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iv) Fraud on the Commonwealth

General deterrence may be given greater weight for offences involving fraud on the Commonwealth.

In R v Caradonna [2000] NSWCCA 398, [22], Dunford J said:

The principle that generally in the case of serious offences of defrauding the revenue the element of general deterrence is of major importance...

In R v Nguyen (1996) 86 A Crim R 521, 525, the offenders operated a clothing manufacturing business. They appealed against the custodial sentences imposed for defrauding the Commonwealth. In rejecting their appeal, the Court of Appeal noted that general deterrence was an important consideration because:

…the offences were committed in a branch of an industry in which, according to the evidence led and the assertions made by counsel on the plea, tax evasion by manufacturers by the failure to disclose income could probably, without any exaggeration, be described as the norm. The prevalence of the offence, the stated incentives to commit it and the difficulty of detecting it are important considerations.

See also R v Stitt (1998) 102 A Crim R 428 (Beazley JA, Wood CJ and Dunford J); R v Cappadona [2001] NSWCCA 194, [13] (McClellan J, Stein JA, Foster AJA); DPP (Cth) v Goldberg [2001] VSCA 107, [51] (Vincent JA).

General deterrence may be given greater weight for social security fraud offences.

In R v Purdon [1996] NSWCCA 60659 (Unreported, Hunt CJ at CL, McInerney and Donovan AJ, 27 March 1997) the rationale for deterrent sentences in the context of social security fraud was explained as follows:

…the offence is easy to commit but difficult to detect, it is widespread, and the introduction of more checks upon applicants for social security would cause delays in the payments of benefits and therefore hardship to those whose need is urgent. It also reflects a concern for the additional burden upon all taxpayers who shoulder the heavy burden of providing the funds for the social security system to operate and the even heavier burden created by the widespread abuse to it by frauds such as these…

Extraordinary circumstances may take a particular case outside the normal approach and in those circumstances general deterrence may not play such a prevalent role: R v Gentz [1999] NSWCCA 285 (Newman J, with whom Simpson and Hidden JJ agreed).

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v) Integrity and security of the Commonwealth

Courts have recognised that general deterrence may be given greater weight for offences concerning the integrity and security of the Commonwealth. Consider the following examples.

General deterrence is given greater weight in cases involving terrorism.

In R v Lodhi [2006] NSWSC 691, [91]-[92] (Whealy J) said:

The need for substantial sentences to reflect the principles of general deterrence are obvious in relation to crimes of this kind. Such crimes are hard to detect; they are likely to be committed by members of our own community and often by persons of prior good character and favourable background. One has only to consider the tragedy of the London bombings in 2005 to recognise this observation as a sad truism. Moreover, terrorism is an increasing evil in our world and a country like Australia, with its very openness and trusting nature, is likely to fall easy prey to the horrors of terrorist activities…In those circumstances, the obligation of the Court is to denounce terrorism and voice its stern disapproval of activities such as those contemplated by the offender here. It may be argued that the imposition of stern penalties, in the context of firm denunciatory statements, will not in fact deter those whose religious and political ideologies are extreme and fanatical. But a stand must be taken. The community is owed this protection even if the obstinacy and madness of extreme views may mean that the protection is a fragile or uncertain one. In my view, the Courts must speak firmly and with conviction in matters of this kind…

These comments of Whealy J were cited with approval by Price J in Lodhi v The Queen [2007] NSWCCA 360, [273].

See also R v Roche [2005] WASCA 4, [24], Murray ACJ of the Court of Criminal Appeal of Western Australia said that in cases of terrorism courts must impose a sentence:

...which would be a strong deterrent to others who might be tempted to allow themselves to be involved in such an activity.

See, similarly, R v Mallah [2005] NSWSC 317, [78]-[82] (Wood CJ at CL).

General deterrence may be given greater weight in relation to offences that undermine the integrity of the Commonwealth.

In Lee v Phelan [2004] ACTSC 28, the offender was convicted of making a false statement contrary to s10(1) of the Passports Act 1938 (Cth). Justice Connelly stated at [8]:

It seems to me that in the case of offences which go to the integrity of the Australian passport system, general deterrence is of particular importance.

In Ilam v Dando [1999] WASCA 129, McKechnie J of the Western Australian Supreme Court rejected an appeal against a sentence of 16 months imprisonment for multiple ‘people smuggling’ offences. McKechnie J said at [12]-[14]:

These offences are part of a growing number of incursions into Australian sovereignty...The introduction of illegal immigrants into Australia threatens this country's national security in many ways. It is a growing problem which requires Australia to take the necessary steps to protect itself. It is the nature of this nefarious trade in human cargo that persons such as the appellants, will often be recruited from among the poorer peoples of the region to supply the necessary transport and to take all the risks. Notwithstanding their comparatively low level in the criminal hierarchy, nevertheless the appellants performed a pivotal role in the scheme and were vital to its success. It is necessary for courts to deal strongly with the appellants and those like them for the purpose of deterrence to others…

For further examples of people smuggling and immigration offences see Dhingra v The Queen [1999] NSWCCA 344, [9] (James J).

The need for general deterrence has been emphasised in relation to illegal fishing offences: R v Zainudin [2005] NTSC 14; (2005) 190 FLR 149, [13].

In Haruma v McCarthy [2008] NTSC 18; (2008) 183 A Crim R 558, Southwood J noted:

[34] The importance of general deterrence in the protection of the Australian Fishing Zone is well recognized, particularly where substantial profits can be made by persons engaged in the commercial fishing industry: Yusup v R [2005] NTCCA 19; Mackay v Diman [1999] NTSC 96. I accept the respondent’s submissions that courts have continually reinforced the need for deterrent penalties in order to protect Australian fisheries from foreign fishing boats…

[36] Personal and general deterrence are matters to which significant weight should be given in cases such as this. Laws such as this are enacted in the national interest. The purpose of the Fisheries Management Act 1991 (Cth) is to protect the marine environment and maintain a sustainable fishery. The purpose of the legislation is to ensure that the Australian territorial sea is not plundered by foreign boats. Such activities have the potential to do great harm to Australian fisheries and to the marine environment.

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vi) Planning

General deterrence has been given greater weight in circumstances where the offence is well planned and premeditated.

In R v Cappadona [2001] NSWCCA 194; (2001) 122 A Crim R 52, [13], the offender was convicted of defrauding the Australian Taxation Office in the sum of $3.5 million contrary to s29D (since repealed) of the Crimes Act 1914 (Cth). At first instance he was sentenced to two years imprisonment, to be served by way of periodic detention. The Crown appealed the sentence. The New South Wales Court of Criminal Appeal upheld the appeal and increased the sentence to eighteen months full time imprisonment. The Court of Appeal considered the high degree of premeditation and planning persuasive, noting that it involved systematic fraud over a period of more than five years. In an attempt to avoid detection, the offender created fake business records and provided false documentation to the Australian Taxation Office. The court concluded:

...this evidences very serious criminal conduct by Tom Cappadona. Although this is not an offence of the most grave category, even after making allowance for the favourable matters identified by the trial judge, a custodial sentence was required. Only a custodial sentence can achieve the objective of general deterrence for this type of fraud...[4]

See also R v Temmingh [2005] NSWCCA 261, [20], [25] (Hoeben J); R v Lam [2005] VSC 98, [28] (Kellam J); R v Liddell [2000] VSCA 37, [74] (Coldrey AJA).

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Footnotes

[1] Australian Law Reform Commission, Same Crime, Same Time, Report No 103 (2006),[4.6]-[4.11]; R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999) [3.405]; Kate Warner, Sentencing in Tasmania (2nd ed, 2002) [3.206].

[2] R v El Karhani (1990) 97 ALR 373, 380; R v Paull (1990) 20 NSWLR 427, 434; R v Sinclair (1990) 51 A Crim R 418; Tapper v The Queen (1992) 111 ALR 347, 351-352; Commissioner of Taxation v Baffsky [2001] NSWCCA 332; (2001) 122 A Crim R 568, [93]; Putland v The Queen [2004] HCA 8; (2004) 218 CLR 174, [12]; R v Fodera [2007] NSWSC 1242; (2007) 65 ACSR 100, [7].

[3] R v El Karhani (1990) 97 ALR 373, 380; R v Paull (1990) 20 NSWLR 427, 434; R v Sinclair (1990) 51 A Crim R 418; Tapper v The Queen (1992) 111 ALR 347, 351-352; Commissioner of Taxation v Baffsky [2001] NSWCCA 332; (2001) 122 A Crim R 568, [93]; Putland v The Queen [2004] HCA 8; (2004) 218 CLR 174, [12]; R v Fodera [2007] NSWSC 1242; (2007) 65 ACSR 100, [7].

[4] R v El Karhani (1990) 97 ALR 373, 380.

[5] R v El Karhani (1990) 97 ALR 373, 380.

[6] R v Pantano (1990) 49 A Crim R 328, 330; R v Fodera [2007] NSWSC 1194; (2007) 65 ASCR 107, [59]; Bell v The Queen [2008] NSWCCA 206, [18]-[19].

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