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Part IB of the Crimes Act 1914 (Cth)

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Last Updated: 8 February 2008

List of subheadings:

Crimes Act 1914 (Cth)
- Definitions
When a court must fix a non-parole period or make a recognizance release order
- Federal offender who is not already serving or subject to a federal sentence
- Federal offender who is currently serving or subject to a federal sentence
Court to explain the purpose and consequences
Length of non-parole periods
- Determining the non-parole period
- Non-parole periods for sentences for certain offences
Failure to fix a non-parole period or make a recognizance release order

Commentary on Non-Parole Periods or Recognizance Release Orders under the Crimes Act 1914 (Cth)

The fixing of a non-parole period for a federal offender who has had a parole order or licence revoked is governed by s 19AR. See Release on Parole or Licence.

Part IB Division 4 of the Crimes Act 1914 (Cth) sets out detailed provisions governing the fixing of non-parole periods and making of recognizance release orders in respect of federal sentences. Commentary on these provisions in this section of the database are separated into four categories:

1. When a court must fix a non-parole period or make a recognizance release order
   
2. The obligation upon the court to explain the purpose and consequences of the non-parole period or recognizance release order.
   
3. Length of non-parole periods
   
4. Failure to fix a non-parole period or make a recognizance release order

A court can only make orders under Division 4 of the Crimes Act 1914 (Cth) in respect of federal sentences. A court is not empowered to fix a single non-parole period or make a recognizance release order in respect of both federal sentences of imprisonment and State or Territory sentences of imprisonment: Crimes Act 1914 (Cth) s 19AJ.

A court is not precluded from fixing a non-parole period in respect of a federal sentence merely because the person is or may be, liable to be deported from Australia: Crimes Act 1914 (Cth) s 19AK; see commentary Federal Offenders Liable for Deportation.

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Definitions

A 'non-parole period' and 'recognizance release order' are defined in s 16(1) of the Crimes Act 1914 (Cth).

Section 20(1)(b) provides the court with the power to suspend a sentence upon giving security of the kind referred to in s 20(1)(a). The court may order that the person be released immediately or after they have served a specified period of imprisonment in respect of that offence: s 20(1)(b). The ALRC report notes that:

A recognizance release order is essentially a conditional suspended sentence. [1]

For further discussion of conditional suspended sentences see Conditional Release Bonds After Conviction.

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When a court must fix a non-parole period or make a recognizance release order

For convenience, commentary on when a court must fix a non-parole period or make a recognizance release order has been divided under two broad headings. Where the federal offender, before a court, is:

a) not already serving or subject to a federal sentence;

b) currently serving or subject to a federal sentence.

See below for fixing a non-parole period for 'minimum non-parole offences'.

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a) Federal offender not already serving or subject to a federal sentence

Sections 19AB(1) and 19AC(1) apply where a person is not already serving or subject to a federal sentence at the time the sentence is imposed.

There is a exception to these provisions (see below).

Federal sentence/s that exceed 3 years

Where a court imposes a federal sentence that:

• exceeds 3 years, or
• federal sentences that, in aggregate, exceed 3 years (if the person was convicted of these offences at the same sitting (s 19AB(1)(a)), or
• the court imposes a federal life sentence

the court must either fix a single non-parole period or make a recognizance release order: Crimes Act 1914 (Cth) s 19AB(1).

Federal sentence/s that do not exceed 3 years

Where a court imposes a federal sentence that:

• does not exceed 3 years, or
• federal sentences that, in aggregate, do not exceed 3 years (if the person was convicted of these offences at the same sitting (s 19AC(1)(a))

the court must make a recognizance release order and must not fix a non-parole period: Crimes Act 1914 (Cth) s 19AC(1).

An exception to a court's obligations under ss 19AB(1) and 19AC(1) exists if the court is satisfied that a non-parole period or recognizance release order is not appropriate having regard to the nature and circumstances of the offence/s and to the antecedents of the person: Crimes Act 1914 (Cth) ss 19AB(3) and 19AC(4) respectively.

Federal sentence/s that do not exceed 6 months

Where a court imposes a federal sentence that:

• does not exceed 6 months, or
• federal sentences that, in aggregate, do not exceed 6 months

the court may make a recognizance release order: Crimes Act 1914 (Cth) s 19AC(3)(a). Hence, the court is not required to set a recognizance release order and may impose a sentence without a recognizance release order.

Note: Where the court decides that neither a non-parole period nor a recognizance release order is appropriate the court must state its reasons and cause those reasons to be entered into the records of the court: Crimes Act 1914 (Cth) ss 19AB(4) and 19AC(5).

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b) Federal offender currently Serving or subject to a federal Sentence

Federal offenders that are currently serving or subject to a federal sentence may either be (i) in prison or (ii) on parole/recognizance.

Different sections of the Crimes Act 1914 (Cth) govern each of these situations (see below).

(i) Offenders in prison and serving or subject to a federal sentence

The following sections apply to federal offenders that are currently in prison and serving or subject to a federal sentence.

Federal sentence/s that exceed 3 years

Where a court imposes a further federal sentence that:

• results in a federal life sentence, or
• where the unserved portions of the federal sentences, in aggregate, exceed 3 years,
  and
• at the time the person is not already subject to a non-parole period or recognizance release order in respect of a federal sentence (s 19AB(2)(c)

a court must either fix a single non-parole period in respect of all federal sentences or make a recognizance release order: Crimes Act 1914 (Cth) s 19AB(2).

Federal sentence/s that do not exceed 3 years

Where the court imposes a further federal sentence

• at the time the person is not already subject to a recognizance release order in respect of a federal sentence (s 19AC(2)(c)), and
• the unserved portions of the federal sentences, in aggregate, do not exceed 3 years

a court must make a recognizance release order in respect of all federal sentences and must not fix a non-parole period: Crimes Act 1914 (Cth) s 19AC(2).

An exception to a court's obligations under ss 19AB(2) and 19AC(2) exists if the court is satisfied that a non-parole period or recognizance release order is not appropriate having regard to the nature and circumstances of the offence/s and to the antecedents of the person: Crimes Act 1914 (Cth) ss 19AB(3) and 19AC(4) respectively.

Federal sentence/s that do not exceed 6 months

Where the court imposes a further federal sentence and the unserved portions of the federal sentences, in aggregate, do not exceed 6 months a court may make a recognizance release order.

However, the court is not required to set a recognizance release order and may impose a straight sentence: Crimes Act 1914 (Cth) s 19AC(3)(b).

 

Note: Where the court decides that neither a non-parole period nor a recognizance release order is appropriate the court must state its reasons and cause those reasons to be entered into the records of the court: Crimes Act 1914 (Cth) ss 19AB(4) and 19AC(5).

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(ii) Offenders on parole or recognizance in respect of a federal sentence

When a court is sentencing a federal offender the court must have regard to any sentence already imposed on person that has not been served or is liable to be served (Crimes Act 1914 (Cth) s 16B; see Totality Principle). The totality principle also operates where the federal offender is serving an existing non-parole period or recognizance release order in respect of a federal sentence and a further federal sentence is imposed. Sections 19AD and 19AE require the court to reconsider the non-parole period or recognizance release order in relation to the overall sentence.

On parole

If a federal sentence is to be imposed upon a federal offender who is serving an existing non-parole period in respect of a federal sentence, regard must be had to section 19AD.

Section 19AD of the Crimes Act 1914 (Cth) imposes an obligation on the court. Where section 19AD applies, the court must not make a recognizance release order: s 19AD(4). After considering the relevant circumstances (s 19AD(2)), the court must do one of the following three things:

1. make an order confirming the existing non-parole period (s 19AD(2)(d)); or
2. fix a new single non-parole period in respect of all federal sentences the person is to serve or complete (s 19AD(2)(e)); or
3. cancel the existing non-parole period and decline to fix a new non-parole period (s 19AD(2)f)). If the court decides to cancel the existing non-parole period the court must state its reasons and cause those reasons to be entered in the records of the court (s 19AD(5)).

On recognizance

If a federal sentence is to be imposed upon a federal offender who is subject to an existing recognizance release order in respect of a federal sentence, regard must be had to section 19AE.

Section 19AE of the Crimes Act 1914 (Cth) imposes an obligation on the court. After considering the relevant circumstances (s 19AE(2)), the court must do one of the following four things:

1. make an order confirming the existing recognizance release order (s 19AE(2)(d)); or
2. make a new recognizance release order in respect of all federal sentences the person is to serve or complete (s 19AE(2)(e)); or
3. if as a result of the further federal sentence the person is to serve or complete a federal life sentence or the aggregate of the unserved portion exceeds 3 years the court may decide it is appropriate to fix a single non-parole period (s 19AE(2)(f)) which will be treated as having superseded the existing recognizance release order (s 19AE(4)(a)); or
4. cancel the existing recognizance release order and decline to make a new recognizance release order (s 19AE(2)(g)). If the court decides to cancel the existing recognizance release order the court must state its reasons and cause those reasons to be entered in the records of the court (s 19AE(5)).

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Court to explain purpose and consequences

Where a federal sentence is imposed with either a non-parole period or a recognizance release order fixed in respect of the sentence, the court is required to explain or cause to be explained to the person the purpose and consequences of the non-parole period or recognizance release order: Crimes Act 1914 (Cth) s 16F.

The federal provision explicitly requires an explanation to be in 'language likely to be readily understood by the person'. [2]

In respect of a federal sentence imposed with a non-parole period the explanation must include (s 16F(1)(a)-(d)):

(a) that service of the sentence will entail a period of imprisonment of not less than the non-parole period and, if a parole order is made, a period of service in the community, called the parole period, to complete service of the sentence; and

(b) that, if a parole order is made, the order will be subject to conditions; and

(c) that the parole order may be amended or revoked; and

(d) of the consequences that may follow if the person fails, without reasonable excuse, to fulfil those conditions.

In respect of a federal sentence imposed with a recognizance release order the explanation must include (s 16F(2)(a)-(d)):

(a) that service of the sentence will entail a period of imprisonment equal to the pre-release period (if any) specified in the order and a period of service in the community equal to the balance of the sentence; and

(b) of the conditions to which the order is subject; and

(c) of the consequences that may follow if the person fails, without reasonable excuse, to fulfil those conditions; and

(d) that any recognizance given in accordance with the order may be discharged or varied under section 20AA.

For example see the explanation provided by Whealy J in R v Ronen [2005] NSWSC 991, [128-132] and the order given to the appellant's legal advisers in R v Nguyen [2005] NSWCCA 362, [107] (Grove J).

Length of non-parole periods

Determining the non-parole period

In R v Martinsen [2003] NSWCCA 144, [14] Hidden J (with whom Sheller JA and Carruthers J agreed) said:

The period of sixteen months which his Honour required the applicant to serve before release on recognizance is two-thirds of the sentence, and is consistent with the norm for non-parole periods for Commonwealth offences: R v Bernier (1998) 102 A Crim R 44 at 49.

R v Bernier was cited in Sweet (2001) 125 A Crim R 341, 346-347:

... the norm for non-parole periods is in the range of about 60 per cent to 66 and two-thirds per cent. One factor which may be material is the length of the head sentence and its position in the permissible range. Circumstances may exist which make it appropriate to move outside the usual range for non-parole periods. The process is not mathematical or rigid, and often requires a finely tuned assessment. The determination of the appropriate non-parole period, as of the head sentence, should be approached with the caution and flexibility enjoined by Hunt CJ at CL in Lawson (1997) 98 A Crim R 463 at 464-465" (emphasis added).

However, after citing R v Bernier, Spigelman CJ noted that ' [a] norm is not a rule or fixed ratio': Sweet (2001) 125 A Crim R 341, 347.

In R v Campos [1999] NSWCCA 339, [18], James J (with whom Meagher JA and Kirby J agreed) remarked:

This Court has not always spoken with one voice on what should be the usual range for the relationship between the non-parole period and the head sentence in the sentencing of Commonwealth offenders. See, for example, R v Bernier (1988) 102 A Crim R 44; R v Behar (NSWCCA 14 October 1998 unreported); R v Stitt (1988) 102 A Crim R 428. However, the authorities do show that a non-parole period of 70 percent of the head sentence, if within range, is towards the top, and not the bottom, of the range.

In R v Stitt (1988) 102 A Crim R 428, 432, Dunford J (with whom Beazley JA and Wood CJ agreed) said:

Generally speaking, in relation to federal offences... non-parole periods have generally varied between 60 to 75 per cent, with periods of 75 per cent being rare and limited to the more serious cases where the prospects of rehabilitation have not been considered good. (See Drazkiewicz (unreported, Court of Criminal Appeal, NSW, No 60706 of 1992, 23 November 1993) per Justice Badgery-Parker at p 7; Barsley (unreported, Court of Criminal Appeal, NSW, 12 December 1997) [emphasis added].

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Non-parole periods for sentences for certain offences

In 2004, s 19AG was inserted into Part IB of the Crimes Act 1914 (Cth). [3]Sections 19AB, 19AC, 19AD, 19AE and 19AR have effect subject to s 19AG: s 19AG(5).

Section 19AG(1) introduced minimum non-parole offences which are offences against:

• s 24AA of the Crimes Act 1914 (Cth) [treachery],
• Subdivision A of Division 72 of the Criminal Code [international terrorist activities using explosive or lethal devices],
• Part 5.3 of the Criminal Code [terrorism],
• Division 80 of the Criminal Code [treason and sedition],
• Division 91 of the Criminal Code [espionage and similar activities].

A court must fix a single non-parole period of at least 3/4 of the sentence imposed for a minimum non-parole offence or the aggregate of the sentences imposed for minimum non-parole offences: s 19AG(2).

The court may set a higher non-parole period if it considers this appropriate in the circumstances of the case.

A life sentence for a minimum non-parole offence is taken to be a sentence of imprisonment for 30 years (s 19AG(3)(a)) such that a minimum non-parole period for a life sentence would be 22 1/2 years.

The Explanatory Memorandum for the Anti-Terrorism Act 2004 (Cth) which inserted s 19AG into the Crimes Act 1914 (Cth) provides:

The Australian Government is concerned that sentences for convicted terrorists should reflect community concern about terrorism. The significant period of time served out in the community, on parole (which is in most cases necessary to reintegrate prisoners back into the community) is not warranted in the case of terrorists and does not reflect community concern about their crime...

Statutory limitation of the parole period is an extraordinary measure which, to date, has only been used in the context of people smuggling offences in 2001 (section 233C of the Migration Act 1958). On that occasion there was also a fixed minimum head sentence. The terrorism offences contained in Division 72 and Part 5.3 of the Criminal Code differ from the Migration Act offences as they target varying types of conduct and have differing maximum sentences of imprisonment, making a fixed minimum head sentence undesirable... The Government also considers that a minimum non-parole period is also appropriate for the very serious offences of treason, treachery and espionage.

Note: Unlike the approach taken in ss 19AB and 19AC the person does not have to be convicted of these sentences in the same sitting nor sentenced in the same sitting: s 19AG(3)(b)(i) and (ii).

In accordance with the practice in federal sentencing, the non-parole period should be set in respect to all federal sentences the person is to serve or complete (s 19AG(2)) and it does not matter if not all of the federal sentences are minimum non-parole offences: s 19AG(3)(b)(iii).

If the person was subject to a recognizance release order, the non-parole period supersedes the order: s 19AG(4).

The operation of s 19AG does not affect the court's obligation to impose a proportionate sentence: Lodhi v R [2007] NSWCCA 360 (see below).

In R v Lodhi [2006] NSWSC 691, [105] Whealy J made the following sentencing remarks:

Section 19AB of the Crimes Act 1914 (Commonwealth) requires of the Court in the present circumstances that it fix a single non-parole period. The purpose of the non-parole period is to provide a mitigation of the punishment of the offender in favour of rehabilitation through conditional freedom. The non-parole period however must incorporate all the relevant sentencing principles including denunciation and deterrence. Prior to the enactment of s 19AG of the Crimes Act 1914 (Commonwealth) – see Item 1B of Schedule 1 of the Anti-Terrorism Act 2004 – the normal range for a non-parole period was between 60-66 per cent of the total sentence (R v Bernier (1998) 102 A Crim R 44), although a higher non-parole period, up to 75 per cent in the most serious cases, might be justified. The new legislation specifically applies to the present offences. It makes it obligatory for the Court to fix the single non-parole period at a percentage of at least 3/4 of the sentence. Where two or more sentences have been imposed on a person, the relevant percentage must relate to the aggregate of those sentences.

As a consequence of these legislative changes, the single non-parole period in the present matter must be for a period of at least 15 years. The Crown has, very properly, submitted that, although the Court is at liberty to impose a non-parole period which is in fact more than 75 per cent of the aggregate of the sentences, it does not suggest that the Court should do so in the present matter.

I have given particular consideration to the recent written submissions made by both the Crown and Mr Boulten SC. These relate specifically to the application of s 19AG. I do not however accept the submission made on the offender’s behalf that, because of the operation of s 19 AG, it is in some way necessary to fix a lower head sentence than might otherwise have been appropriate.

As a consequence, in the present matters, it is my conclusion that a non-parole period of 15 years should apply. This is consistent with the legislation and with the submissions made on behalf of the Crown. Moreover, I consider that both the head sentence and the proposed non-parole period I have selected reflect adequately and appropriately the application of the general sentencing principles I have stated. Any lesser sentence would not, in my view, adequately address those important sentencing principles in the case of this offender and would, in relation to the proportion between the non-parole period and the head sentence, be inconsistent with the terms of the legislation.

This sentence was upheld by the New South Wales Court of Criminal Appeal in Lodhi v The Queen [2007] NSWCCA 360. Price J stated: at [261-2]

Section 19AG imposes a statutory fetter upon the exercise of judicial discretion by prescribing a non-parole period of at least ¾ for those offences found in s 19AG(1) which are described as “minimum non-parole” offences. A “terrorism offence” is a minimum non-parole offence: s 19AG(1)(b). Section 3 defines a “terrorism offence” to include offences against Part 5.3 of the Criminal Code within which Part the offences of which the appellant was convicted fall. Section 19AG does not detract in any way from the obligation of a sentencing Judge to first impose a proportionate sentence before considering the non-parole period.

Whealy J rejected the appellant’s submission that because of the operation of s 19AB it was necessary to fix a lower head sentence than might otherwise have been appropriate. His Honour did not err in doing so and this ground of appeal fails. [4]

For further commentary on the Lodhi case see M Gani, "How does it end? Reflections on Completed Prosecutions under Australia's Anti-Terrorism Legislation" in M Gani and P Mathew (eds), Fresh Perspectives on the "War on Terror", (ANU EPress, forthcoming, 2008).

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Failure to fix a non-parole period or make a recognizance release order

Failure to comply fully with this Act in respect to fixing non-parole periods or making recognizance release orders does not affect the validity of the sentence: Crimes Act 1914 (Cth) s 19AH (1).

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Footnotes

[1] Australian Law Reform Commission, Same Crime, Same Time, Report No 103 (2006) [7.50].

[2] see Crimes Act 1914 (Cth) s 16F(1) [Non-parole period] or (2) [Recognizance Release Orders].

[3] Anti-Terrorism Act 2004 (Cth).

[4] Lodhi v The Queen [2007] NSWCCA 360, [261-2]. See also Spigelman CJ [110] and Barr J [213-4].

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