Last Updated: 1 October 2010

List of subheadings:

Adequacy of Punishment under the Crimes Act 1914 (Cth)
Scope of s 16A(2)(k)
-Relevance of Professional Standing

 

Commentary on the Adequacy of Punishment under the Crimes Act 1914 (Cth)

Section 16A(2)(k) requires a sentencing court ensure that a federal offender is adequately punished for their criminal offending:

SECTION 16A (2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court: ... (k) the need to ensure that the person is adequately punished for the offence

[Top]

Scope of s 16A(2)(k)

The need to ensure that a person is ‘adequately punished’ directs courts to consider the objective circumstances surrounding the offence, while reflecting several fundamental principles that underpin sentencing law.

Ensuring that a person is ‘adequately punished’ is consistent with the process of assessing the objective circumstances that surround an offence. There are similarities between the need in s 16A(2)(k) for courts to ensure that a person is ‘adequately punished’, and the requirement within s 16A(1) that courts impose a sentence of a ‘severity appropriate in all the circumstances’. In R v Salcedo [2004] NSWCCA 430, McColl JA (with whom Levine and Hidden JJ agreed) addressed the relationship between s 16A(2)(k) and s 16A(1). McColl JA, at [59] observed:

…the task of the sentencing judge is to take into account all the objective circumstances of the offence in characterising its criminality as well as such subjective circumstances as appear appropriate. The first part of the exercise is reinforced by s 16A of the Crimes Act 1914 (Cth) which required the sentencing judge to take into account “the need to ensure that the person is adequately punished for the offence” and the requirement that the sentencing judge “impose a sentence ... that is of a severity appropriate in all the circumstances of the offence”: s 16A(2)(k), s 16A(1).

See also R v Petroulias (No 36) [2008] NSWSC 626, [206]; R v Lam [2005] VSC 98, [50].

Taking into account all objective circumstances to ensure an offender is ‘adequately punished’ reflects the fundamental notion of proportionality.

The principle of proportionality requires courts to impose sentences that are consistent with the gravity of the offence in light of objective circumstances. [1] In Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, Gaudron, Gummow and Hayne JJ indicated that the notion of proportionality is embodied within s 16A(1). [2]

Note: the Australian Law Reform Commission also indicates that s 16A(2)(k) may be interpreted as reflecting the sentencing purpose of retribution. [3]

[Top]

Relevance of Professional Standing

Despite authority suggesting that s 16A(2)(k) involves consideration of objective circumstances, courts sentencing federal offenders have occasionally referred to an offender's professional circumstances when addressing the adequacy of punishment.

In Commissioner of Taxation v Baffsky [2001] NSWCCA 332, [35], the effect of conviction on the offender’s professional status as a barrister was deemed relevant when assessing the adequacy of punishment pursuant to s 16A(2)(k).

A similar approach was adopted in Commissioner of Taxation v Doudle [2005] SASC 442, where Debelle J noted at [17] that:

It was relevant to consider whether the conviction would have had consequences for the continued registration of the respondent as a tax agent. The professional status of an offender is...relevant to the issue of adequate punishment in s 16A(2)(k)

[Top]

 

Footnotes

[1] Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348. See also Australian Law Reform Commission Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [5.3].

[2] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, [71]. See also R v Fodera [2007] NSWSC 1194, [55].

[3] Australian Law Reform Commission Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [4.32].