Commonwealth Sentencing

When a person is convicted of a Commonwealth (federal) criminal offence in a Victorian court, the sentencing process operates under a different framework from Victorian State offences. When a Victorian court sentences someone for a Commonwealth offence, it applies Part IB of the Crimes Act 1914 (Cth) and not the Sentencing Act 1991 (Vic). Part IB does not exhaustively cover all aspects of federal sentencing. State and Territory sentencing law can be applied to federal offenders where it is not inconsistent with Commonwealth law. Part IB governs how federal offenders are sentenced, imprisoned, and released across every state and territory. The Commonwealth Director of Public Prosecutions (CDPP) prosecutes alleged offences against commonwealth law in Victoria including drug importation, trafficking, and manufacturing under the Criminal Code Act 1995 (Cth), fraud against Commonwealth agencies, child exploitation material offences, foreign bribery, and tax offences. 

Part IB of the Crimes Act 1914 (Cth) 

Part IB of the Crimes Act 1914 (Cth) governs the sentencing, imprisonment, and release of federal offenders. A federal offence is defined in s 16 as any offence against a law of the Commonwealth. Part IB is not a complete code. The High Court confirmed in Putland v The Queen (2004) 218 CLR 174 that Part IB does not exhaustively cover all aspects of federal sentencing. State and Territory sentencing law can be applied to federal offenders where it is not inconsistent with Commonwealth law. 

In practical terms this means federal offenders sentenced in Victoria may in appropriate cases be eligible for Victorian sentencing alternatives such as community correction orders and intensive correction orders. In some important areas, Commonwealth law takes over completely and Victorian law doesn’t apply at all.  

What the Court Actually Weighs Up (Crimes Act 1914 (Cth), s 16A 

Before a judge sentences someone for a federal offence, s 16A(1) gives one main instruction: the punishment has to fit the crime, no more and no less. Section 16A(2) then lists the specific things a judge has to think about along the way, and no single one of them outweighs the rest. The process has been described as “instinctive synthesis”. The judge weighs everything relevant together and arrives at one sentence, rather than scoring each factor separately and adding them up. 

Here’s what the s 16A (2) checklist actually covers. 

Section 16A(1) sets one test: the sentence must fit the crime, no more, no less. Section 16A(2) lists what a judge must consider, with no factor outweighing the others (Totaan v R (2022) 108 NSWLR 17). The High Court calls this “instinctive synthesis” (Wong v The Queen (2001) 207 CLR 584): weighing everything together into one sentence, not scoring each factor separately. 

• The nature and circumstances of the offence – s 16A(2)(a): What happened, the planning involved, and the offender’s role compared to others 

• Other offences taken into account – s 16A(2)(b): If someone wants extra federal offences dealt with at the same time as the main charge, this is done through a signed document filed with the court. The offender has to admit guilt to each offence on that list. Federal offences and state offences cannot be put on the same list together 

• Course of conduct – s 16A(2)(c): Where a charge represents a string of similar acts rolled into one count, if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character the court may take that course of conduct into account 

• The victim – s 16A(2)(d): The personal circumstances of any victim of the offence must be considered.  

• Contrition – s 16A(2)(f): The court looks at how much the person has genuinely shown contrition for the offence, either by making reparation for any injury, loss, or damage caused, or in any other way 

• Guilty plea – s 16A(2)(g): If the person has pleaded guilty to the charge in respect of the offence 

• Cooperation – s 16A(2)(h) and s 16AC: The court considers how much the person has cooperated with law enforcement in investigating this offence or other offences. One talks about the past cooperation – 16A(2)(h) and the other one talks about the ‘undertaking to cooperate’, a promise to cooperate in the future. 

• Deterrence – s 16A(2)(j) : The deterrent effect that any sentence or order under consideration may have on the person 

• Adequate punishment – s 16A(2)(k): The need to ensure that the person is adequately punished for the offence  

• Character, background, means, condition – s 16A(2)(m): The character, antecedents, age, means and physical or mental condition of the person 

• Rehabilitation prospects – s 16A(2)(n): The prospect of rehabilitation of the person 

• Effect on family – s 16A(2)(p): Hardship to the offender’s family from imprisonment is relevant, the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants 

The Restriction on Imprisonment: Section 17A 

A court cannot imprison a federal offender unless, after genuinely considering every other available sentence, it is satisfied that no other sentence is appropriate. Courts have consistently said imprisonment is not the automatic or default outcome for any type of federal offence. 

Sentencing Options 

For federal offenders, the specific penalties or orders a court can impose once it has found a person guilty are set out in the Crimes Act 1914 (Cth). 

• Bond with Conviction 

• Bond without conviction  

• Community correction orders  

• Dismissal 

• Fine 

• Imprisonment 

Parole for Federal Offenders 

There is no federal parole board. For sentences over three years, the Commonwealth Attorney-General, or a delegate, must decide whether to grant parole before the non-parole period ends. This is done on paper only, with no hearing. Fixing the non-parole period is the court’s job, done at sentencing. Deciding whether to actually release someone on parole is a separate, later decision made by the Attorney-General. 

Parole conditions under s 19AN require good behaviour, no further offending, and compliance with a supervisor’s directions where one is appointed. The Attorney-General can impose additional conditions and can revoke parole. Parole is also revoked if the person receives more than three months’ imprisonment for a new offence committed while on parole.