Crimes Act 1914

Part IB - Sentencing, imprisonment and release of federal offenders  

Division 2 - General sentencing principles  

SECTION 16A   Matters to which court to have regard when passing sentence etc. - federal offences  

(1)    
In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.

Note:

Minimum penalties apply for certain offences - see sections 16AAA , 16AAB and 16AAC .

(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;

(ea)    

if an individual who is a victim of the offence has suffered harm as a result of the offence - any victim impact statement for the victim;

(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:

(i) that fact; and

(ii) the timing of the plea; and

(iii) the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence;

(h)    the degree to which the person has cooperated 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;

(ja)    

the deterrent effect that any sentence or order under consideration may have on other persons;

(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;

(ma)    if the person ' s standing in the community was used by the person to aid in the commission of the offence - that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates;

(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.

(2AAA)    
In determining the sentence to be passed, or the order to be made, in respect of any person for a Commonwealth child sex offence, in addition to any other matters, the court must have regard to the objective of rehabilitating the person, including by considering whether it is appropriate, taking into account such of the following matters as are relevant and known to the court:

(a)    when making an order - to impose any conditions about rehabilitation or treatment options;

(b)    in determining the length of any sentence or non-parole period - to include sufficient time for the person to undertake a rehabilitation program.

(2A)    

However, the court must not take into account under subsection (1) or (2) , other than paragraph (2)(ma) , any form of customary law or cultural practice as a reason for:

(a)    excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates; or

(b)    aggravating the seriousness of the criminal behaviour to which the offence relates.

(2AA)    
Subsection (2A) does not apply in relation to an offence against the following:

(a)    section 22 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 ;

(b)    sections 15A, 15C, 17B, 22A, 27A, 74AA, 142A, 142B, 207B, 354A, 355A and 470 of the Environment Protection and Biodiversity Conservation Act 1999 ;

(c)    

section 48 of the Aboriginal Land and Waters (Jervis Bay Territory) Act 1986 ;

(d)    sections 69 and 70 of the Aboriginal Land Rights (Northern Territory) Act 1976 ;

(e)    section 30 of the Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 ;

(f)    any other law prescribed by the regulations that relates to:

(i) entering, remaining on or damaging cultural heritage; or

(ii) damaging or removing a cultural heritage object.

(2B)    

In subsection (2A) :

criminal behaviour
includes:

(a) any conduct, omission to act, circumstance or result that is, or forms part of, a physical element of the offence in question; and

(b) any fault element relating to such a physical element.

(3)    
Without limiting the generality of subsections (1) , (2) and (2AAA) , in determining whether a sentence or order under subsection 19B(1) , 20(1) or 20AB(1) is the appropriate sentence or order to be passed or made in respect of a federal offence, the court 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.

(4)    

For the purposes of a reference in this Part to a family, the members of a person ' s family are taken to include the following (without limitation):

(a)    a de facto partner of the person;

(b)    someone who is the child of the person, or of whom the person is the child, because of the definition of child in section 3 ;

(c)    anyone else who would be a member of the person ' s family if someone mentioned in paragraph (a) or (b) is taken to be a member of the person ' s family.