Sentencing Factors

Last Updated: 10 November 2010

List of subheadings:

Crimes Act 1914 (Cth)
Scope of s16A(1)
Scope of s16A(2)
- non-exhaustive list of sentencing factors in s16A(2)
Scope of s16A(2A) and (2B)
Scope of s16A(3)

Commentary on the matters to which the court is to have regard under

the Crimes Act 1914 (Cth)

In Wong v The Queen [2001] HCA 64, [71] Gaudron, Gummow and Hayne JJ commented on the operation of sections 16A(1) and (2) of the Crimes Act 1914 (Cth). Their Honours said:

The sentencer must, therefore, "impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence": s 16A(1). Standing alone, the reference to imposing "a sentence ... of a severity appropriate in all the circumstances of the offence" might be read as directing the sentencing judge to determine a sentence proportionate to the wrong-doing without regard to considerations of rehabilitation or incapacitation of the offender or the offender's prior criminal history. But s 16A(1) does not stand alone. To the extent that the matters identified in s 16A(2) are relevant and known to the Court, the sentencer must take those into account. This group of matters is very diverse. It includes not only "the nature and circumstances of the offence" but also matters such as the degree to which the offender has shown contrition, the offender's "character, antecedents, cultural background [now repealed], age, means and physical or mental condition" and "the need to ensure that the person is adequately punished for the offence". What is notably absent from s 16A is any guidance about the accommodation that is to be made between these various factors or between these factors and the general requirement that the sentence be of a severity appropriate in all the circumstances of the offence.

The passage has been frequently cited see, eg, R v Institoris (2002) 129 A Crim R 458, [49]; R v Nguyen [2005] NSWCCA 362, [46].

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Scope of s16A(1)

The court must impose a sentence, or make an order, upon a person convicted of a federal offence of a severity appropriate in all the circumstances of the offence: Crimes Act 1914 (Cth) s 16A(1).

In DPP (Cth) v El Karhani (1990) 51 A Crim R 123 Kirby P, Campbell and Newman JJ remarked that:

...s 16A(1) imposes on the Court the duty, which is its primary obligation, to ensure that the sentence or order “is of a severity appropriate in all the circumstances of the offence. It is by this duty that the general principles of sentencing law are imported into the function of a court imposing a sentence on a federal offender convicted of the offence. What will be "appropriate" will depend, in part, upon a consideration of fundamental notions, such as that of general deterrence.[1]

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Scope of s16A(2)

Section 16A(2) of the Crimes Act 1914 (Cth) provides a non-exhaustive list of sentencing factors a court must take into account in sentencing: see below.

Unlike sentencing acts adopted in some Australian States and Territories, the federal act does not specify which of these factors are aggravating or mitigating factors.

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'In addition to any other matters'

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

... the opening words of s 16A(2) must be noticed. They state that the matters there listed are to be taken into account “in addition to any other matters”. These words make it plain beyond argument that the legislature was not seeking, by the list, to exclude other relevant matters.

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'Relevant and Known to the court'

To the extent that the listed matters are 'relevant and known' to the court it is mandatory for the court to take these factors into account in sentencing

In the R v Olbrich [1999] HCA 54 Kirby J remarked:

The reference to the matters "known to the court" amounts to a recognition by the Parliament of the varying contexts in which facts will be made known to the court. Relevant to a trial before a judge alone, the nature and circumstances of the offence, will only become "known to the court" to the extent that the accused admits, and the court receives, evidence and other materials or to the extent that the prosecution or the accused prove the facts relevant to "the nature and circumstances of the offence". To the extent that facts so relevant are disputed, they must be proved by the party bearing the applicable burden of proof and to the standard of proof applicable to that party.

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non-exhaustive list of sentencing factors

For further commentary on the matters listed in s 16A(2) click on the links below:

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:

(a) the nature and circumstances of the offence;

(b) other offences (if any) that are required or permitted to be taken into account;

(c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character--that course of conduct;

(d) the personal circumstances of any victim of the offence;

(e) any injury, loss or damage resulting from the offence;

(f) the degree to which the person has shown contrition for the offence:

(i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or

(ii) in any other manner;

(fa) the extent to which the person has failed to comply with:

(i) any order under subsection 23CD(1) of the Federal Court of Australia Act 1976; or

(ii) any obligation under a law of the Commonwealth; or

(iii) any obligation under a law of the State or Territory applying under subsection 68(1) of the Judiciary Act 1903; about pre-trial disclosure, or ongoing disclosure, in proceedings relating to the offence;

(g) if the person has pleaded guilty to the charge in respect of the offence--that fact;

(h) the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences;

(j) the deterrent effect that any sentence or order under consideration may have on the person;

(k) the need to ensure that the person is adequately punished for the offence;

(m) the character, antecedents, age, means and physical or mental condition of the person;

(n) the prospect of rehabilitation of the person;

(p) the probable effect that any sentence or order under consideration would have on any of the person's family or dependants.

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Scope of s16A(2A) and (2B)

Section 16A(2A) of the Crimes Act 1914 (Cth) prohibits a court from taking customary law or cultural practice into account to either mitigate or aggravate the seriousness of criminal behaviour under a federal offence. 'Criminal behaviour' is defined in s 16A(2B).

For further commentary see Aboriginal and Torres Strait Islander Offenders.

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Scope of s 16A(3)

Section 16A(3) of the Crimes Act 1914 (Cth) provides that a court, in determining whether a non-custodial sentence or order is appropriate, must have regard to the nature and severity of the conditions that may be imposed on, or may apply to, the offender, under that sentence or order.

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Footnotes

[1] DPP (Cth) v El Karhani (1990) 51 A Crim R 123, 130.