Commonwealth Sentencing Scale
When we talk about the Commonwealth sentencing scale, we are referring to the range of sentencing options open to the Court.
The sentencing options, starting from least severe to most severe, are set out below.
1) Dismiss the Charge, s 19B Crimes Act 1914 (Cth)
Where a person is charged before the Court with a federal offence or offences, the Court may, pursuant to section 19B(1)(c) of the Crimes Act 1914 (Cth), dismiss the charges if it is satisfied that both stages of a two-stage test are met.
Test for Dismissing Charges
The two-stage test for whether a court may dismiss charges is:
Stage 1:
- the character, antecedents, age, health or mental condition of the person;
- the extent (if any) to which the offence is of a trivial nature; or
- the extent (if any) to which the offence was committed under extenuating circumstances; and
Stage 2:
- that it would not be advisable to inflict any punishment on the person charged.
In Step 1, it is only necessary for one of the three factors to be made out, but all are looked at. If the Court is satisfied that this test is met, they may choose to dismiss the federal charges.
2) Bond Without Conviction, s 19B Crimes Act 1914 (Cth)
Under section 19B of the Crimes Act 1914 (Cth), the Court may discharge a person charged with federal offences without conviction on a bond with specified conditions.
Section 19B(1)(d) states that the bond is reliant on the person giving security, either with or without a surety, by recognizance or otherwise, to ensure the Court that they will comply with specified conditions.
3) Bond With Conviction, s 20(1)(a) Crimes Act 1914 (Cth)
Section 20 of the Crimes Act 1914 (Cth) enables the Court to release a person convicted of a federal offence or offences on bond, without sentencing them. This is dependent on the person giving security, with or without sureties, by recognizance or otherwise.
4) Fine With Conviction
Certain federal offences under the Crimes Act 1914 (Cth) are listed as punishable by imprisonment only. Section 4B of the Act permits the Court to impose a fine on a convicted person either in addition to, or instead of imprisonment (be aware you cannot get a fine without conviction in relation to a commonwealth offence).
Section 4B contains the formula for calculating the maximum fine for a natural person convicted of an offence under the Act. This is done through reference to the number of penalty units. To work out the fine, multiply the maximum term of imprisonment by five. As an example, an offence with a maximum prison sentence of 6 months would allow for a maximum fine of 30 penalty units.
5) State/Territory Community Correction Order and the like, with conviction – s 20AB
Crimes Act 1914 (Cth)
Unlike State or Territory Community Correction Orders that may be combined with imprisonment for a single offence, a CCO cannot be combined with a term of imprisonment for a single federal offence. Under Part IB of the Crimes Act 1914 (Cth), the court may decide to impose a term of imprisonment with a conditional release in a form other than parole, in the form of a recognizance release order.
The Community Correction Orders available are listed under s 20AB(1AA)(a)(iii) of the Crimes Act 1914 (Cth).
6) Imprisonment – by way of a straight sentence, or subject to release on parole, or pursuant to a recognizance release order (either forthwith or after service of a specified period.
Imprisonment – Commencement of Sentences
Section 16E(1) states that State laws relating to the commencement of sentences and of non-parole periods apply to a person sentenced for a federal offence in the same way it applies to a person sentenced for a State offence.
Different Sentencing options for Cth Prison Sentences
When fixing the type of sentence for a federal offender who has received a prison sentence, the law distinguishes between:
- sentencing a federal offender not presently undergoing a federal sentence and
- sentencing a federal offender who is presently undergoing a federal sentence of imprisonment.
Recognisance Release Order (RRO)
A ‘recognisance release order’ is an order allowing for an offender who has been sentenced to a term of imprisonment to instead be released, subject to certain requirements, such as maintaining ‘good behaviour’.
Non-Parole Period (NPP)
A ‘non-parole period’ is the time during which an offender who has been sentenced to prison must be imprisoned and cannot be released on parole.
Other Orders
A defendant suffering from mental illness or intellectual disability may be granted a diversion under s 20BQ Crimes Act 1914 (Cth).
Where a person appears in a State or Territory court proceeding in respect of a federal offence is found to be suffering an intellectual disability or mental illness, the court may deem it more appropriate to deal with the person rather than the law in respect to the relevant evidence, they may:
- Dismiss the charge and discharge the person:
- into the care of a responsible person,
- unconditionally,
- or subject to conditions,
- adjourn the proceedings,
- remand the person on bail,
- or make any other order that the court considers appropriate.
Diversionary Procedure
Section 20AB (see below) in conjunction section 59 of the Criminal Procedure Act (Vic) allows for an offender in relation to a commonwealth charge to receive a diversion. All the other conditions apply in relation to diversion, but ultimately if a diversion is granted that no criminal record will ensue. For further information on how to get a diversion? Follow the link.
Sentencing Options under s 20AB Crimes Act 1914 (Cth)
The court has the power to impose some sentencing options for Commonwealth offences, and enables a person to be sentenced to a specific State or Territory order.
When a federal offender is sentenced, the participating state or territory may impose a sentence available under its law if it is:
- a sentencing option listed under s 20AB(1AA); or
- A sentencing option similar to a sentence or order contained in s 20AB(1AA).
Some examples of sentencing options available under s 20AB(1AA) include a community based order, a drug or alcohol treatment order, an intensive supervision order, or a weekend detention order.
Options that are not available under s 20AB:
There are some limits to the application of s 20AB. For a non-parole offence outlined in s 19AG, the court cannot initiate a sentence or make an order under s 20AB(1) that involves detention or imprisonment. Minimum non-parole offences under s 19AG(1) include:
- Treachery
- International terrorist activities using explosive or lethal devices
- Terrorism
- Treason, urging violence and advocating terrorism
- Espionage and similar offences
