Home

Statistics

Principles & Practice

Table of Contents

Part IB of the Crimes Act 1914 (Cth)

Table of Cases

User Guide

Index

Contact Us

Last Updated: 8 February 2008

List of subheadings:

Crimes Act 1914 (Cth)
- General Restrictions
- Restrictions for certain minor offences
- Hard Labour
- Class of Prison
- Non Parole Periods

Common Law Factors Relevant to a Sentence of Imprisonment

General Restrictions

A court shall not pass a sentence of imprisonment for a federal offence unless the court is satisfied no other sentence is appropriate in all the circumstances of the case: s 17A(1).

When a court does pass a sentence of imprisonment for a federal offence the court must state the reasons for its decision that no other sentence is appropriate, and enter those reasons into the records of the court: s 17A(2).

The Court must have regard to other periods of imprisonment liable to be served: Crimes Act 1914 (Cth) s 16B. See Totality Principle.

Mandatory minimum terms of imprisonment are prescribed under some federal legislation. [1]

Note: federal prisoners are imprisoned in the State or Territory prisons of the jurisdiction in which they are sentenced: s 19A.

[Top]

Restrictions for certain minor offences

Under s 17B of the Crimes Act 1914 (Cth), a sentence of imprisonment can only be imposed for certain minor offences if the court is satisfied that there are exceptional circumstances that warrant it.

Section 17B offences are where:

- the offence relates to property, money or both whose total value is not more than $2000; and
- the person has not previously been sentenced to imprisonment for any federal, State of Territory offence; and
- the offence is against one of the following:

• Criminal Code Act 1995
  Section 131.1 Theft
  Section 132.1 Receiving
  Section 132.6 Making off without payment
  Section 132.7 Going equipped for theft or a property offence
  Section 134.1 Obtaining property by deception
  Section 134.2 Obtaining a financial advantage by deception
  Section 135.1 General dishonesty:

• Obtaining a gain
• Causing a loss
• Influencing a Commonwealth public official

Section 135.2 Obtaining financial advantage
Section 135.4 Conspiracy to defraud
Section 145.4 Falsification of documents etc.
Section 145.5 Giving information derived from false or misleading documents

• Crimes Act 1914 (Cth)

Section 29 Destroying or damaging Commonwealth property

[Top]

Hard labour

Where imprisonment is imposed for a federal offence it may be imposed either with or without hard labour unless the contrary intention appears in the law: s 18(1).

Note: Hard labour was introduced in the United Kingdom in 1779 and required prisoners to dredge the River Thames. This sentencing option has since been abolished in the United Kingdom.[2] The Australian Law Reform Commission recommends the abolition of hard labour as a federal sentencing option in order to strengthen Australia's commitments to its obligations under the International Covenant on Civil and Political Rights and the Convention Against Torture.[3]

[Top]

CLASS OF PRISON

Where the law of a State or Territory provides that a convicted person may be imprisoned in a particular kind or class of prison, a person convicted of a federal offence may be imprisoned in the kind of prison appropriate to the circumstances: s 18(2).

[Top]

NON-PAROLE PERIODS and Recognizance Release ORders

Under s 19AB(1) of the Crimes Act 1914 (Cth) where a court imposes a federal sentence of imprisonment that exceeds 3 years, the court must either fix a non-parole period or make a recognizance release order. See Non Parole Periods.

[Top]

Common Law Factors Relevant to a Sentence of Imprisonment

At common law, as under the Crimes Act 1914 (Cth), imprisonment is a sentence of last resort. [4]

Other circumstances personal to the offender may effect the imposition of a sentence of imprisonment on an offender.

Mental Condition and Imprisonment

Where an offender suffers from mental illness or intellectual disability, the court may need to be more lenient in its approach to sentencing. Whilst the appropriate penalty for some serious crimes will, notwithstanding of the mental condition of the offender, be imprisonment, consideration of the offender's personal circumstances may be reflected in the suspension of the sentence or in the setting of the non-parole period: see Mason-Stuart v The Queen (1993) 61 SASR 204, [205]-[206].

See further Factors to Consider When Sentencing a Person With a Mental Condition; Sentencing Alternatives for Persons Suffering From Mental Illness or Intellectual Disability.

[Top]

Onerous Conditions of Imprisonment

A court may consider the additionally onerous or harsh conditions to which offenders who might have to serve their sentence in protective custody may be subjected. In R v Mostyn (2004) 145 A Crim R 304, Howie J stated in relation to informants:

on the one hand, the sentencer should take into account the conditions of the prisoner's custody where it appears that they will be unduly onerous because of some matter particular to that prisoner. This requires that, at the time of sentence, the court make some prediction about the nature of the custody that will be endured by the prisoner. On the other hand, the courts should now be aware that assumptions or predictions, which have been made in the past about the nature of an offender's custody because, for example, the offender has given assistance to the authorities, no longer hold good. But the vagaries of prison life are such that it could never be confidently assumed or predicted that a prisoner will serve the whole of his sentence in any particular type of custodial arrangement. [5]

See also R v Totten [2003] NSWCCA 207 and R v Durocher-Yvon (2003) 142 A Crim R 489.

Leniency may be afforded to an offender who is at grave risk of injury or death while imprisoned: York (2005) 79 ALJR 1919 (McHugh J).

[Top]

Public Profile

In the case of Laws (No 2) (2000) 116 A Crim R 70 Wood CJ imposed a suspended sentence of imprisonment. Due to the public profile of the defendant a full time custodial sentence and a home detention order were deemed inappropriate. Wood CJ explained:

after careful consideration, I am not persuaded that either is the appropriate option for this case. By reason of Mr Laws' high profile and his well known stand on issues of law and order, I believe that he would face a significant risk of personal injury or worse if sentenced to periodic detention, a form of imprisonment that does not allow for segregation other than from those inmates who are serving full-time sentences... Home detention would risk attracting the derision of the community, and provide a juicy subject for lampoon by cartoonists and columnists, which would threaten respect for the law. [6]

[Top]

Hardship on Others

The Crimes Act s 16A(2)(p) provides that when sentencing an offender the court must take into account 'the probable effect that any sentence or order under consideration would have on any of the person's family or dependants.

Under common law, the resulting hardship on an offender's family following from a sentence of imprisonment will only be considered a mitigating factor in exceptional circumstances. In Wirth (1976) 14 SASR 291, Wells J stated that:

hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances were highly exceptional, where it would be, in effect, inhuman to refuse to do so. [7]

See further Effect on Offender's Family or Dependants.

[Top]

Footnotes

[1] See, eg Migration Act 1958 (Cth) s 233C.

[2] Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [7.136].

[3] Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [7.137]- [7.139].

[4] R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999), 650.

[5] (2004) 145 A Crim R 304, [332].

[6] (2000) 116 A Crim R 70, [78].

[7] (1976) 14 SASR 291, [296].