This Part does not prevent any other law about taking evidence of a witness from applying for the purposes of a proceeding.
15YZF Saving of other laws
This Part is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory.
Part IB—Sentencing, imprisonment and release of federal offenders
Division 1—Interpretation
16 Interpretation
(1) In this Part, unless the contrary intention appears:
aggregate, in relation to 2 or more sentences or terms of imprisonment, or in relation to the unserved portions of such sentences or terms, means the total effective sentence or term of imprisonment imposed, or remaining unserved, as the case may be, having regard to whether the sentences or terms are to be served cumulatively, partly cumulatively or concurrently.
Examples demonstrating meaning of aggregate
Example 1: The aggregate of 3 sentences, each of 2 years, to be served concurrently, is 2 years.
Example 2: The aggregate of 3 sentences, each of 2 years, where 2 sentences are to be served concurrently and one is to be served cumulatively, is 4 years.
Example 3: The aggregate of a one year unserved portion of a sentence, a 2 year unserved portion of another sentence, to be served concurrently with the first sentence, and a 2 year sentence to be served cumulatively, is 4 years.
Australian travel document has the same meaning as in the Australian Passports Act 2005.
family has a meaning affected by subsection 16A(4).
federal offence means an offence against the law of the Commonwealth.
federal offender means a person convicted of a federal offence.
federal sentence means a sentence imposed for a federal offence.
fit to be tried includes fit to plead.
harm includes:
(a) physical, psychological and emotional suffering; and
(b) economic and other loss; and
(c) damage.
law, in relation to the Commonwealth, a State or a Territory, includes the common law, and any Imperial Act or order, that comprises a part of that law.
licence means a licence granted under section 19AP.
licence period, for a person who is released on licence for a federal sentence, means the period starting on the day of release on licence and ending:
(a) if a recognizance release order has been made for the federal sentence—at the end of the day before the person is eligible for release in accordance with the recognizance release order; and
(b) in any other case:
(i) at the end of the last day of any federal sentence that is, on the day of the release, being served or to be served; or
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(ii) if the person has been given a federal life sentence—at the end of the day specified in the licence as the day on which the licence period ends.
maximum penalty, in relation to an offence at common law, means imprisonment for life.
non‑parole period, in relation to a sentence or sentences of imprisonment, means that part of the period of imprisonment for that sentence or those sentences during which the person is not to be released on parole, whether that part of the period is fixed or recommended by a court or fixed by operation of law.
offence means a federal offence, a State offence or a Territory offence.
offender means a federal offender, a State offender or a Territory offender.
parole includes probation.
parole officer means:
(a) an officer of a State, the Australian Capital Territory or the Northern Territory in respect of whom there applies:
(i) an arrangement in force under paragraph 21F(1)(b); or
(ii) an arrangement having a substantially similar effect in force under section 3B; or
(b) a person appointed or engaged under the Public Service Act 1999 in respect of whom an appointment under subsection 21F(3) is in force.
parole order means an order made under subsection 19AL(1) or (1A), paragraph 19AL(2)(b) or subsection 19AL(2A), (6) or (7) directing that a person be released from prison on parole.
parole period, for a person for whom a parole order has been made, has the meaning given by section 19AMA.
pre‑release period, in relation to a recognizance release order made in respect of a federal sentence or sentences, means the period of imprisonment specified in that order as the period of imprisonment in respect of that sentence or those sentences after service of which the offender may be released on the giving of security in accordance with that order.
prescribed authority means:
(a) a person who holds office as a Magistrate of a State, the Australian Capital Territory or the Northern Territory and in respect of whom an arrangement in force under paragraph 21F(1)(a) is applicable; or
(b) a person who holds office as a Magistrate of a Territory (other than the Australian Capital Territory or the Northern Territory); or
(c) unless an arrangement has been entered into under paragraph 21F(1)(a) in respect of persons holding office as Magistrates of the Australian Capital Territory—a person who holds office as a Magistrate of the Australian Capital Territory.
prison includes gaol, lock‑up or other place of detention.
recognizance release order means an order made under paragraph 20(1)(b).
released on licence means released from prison under section 19AP.
released on parole means released from prison under a parole order in accordance with section 19AM.
sentence, in sections 16B to 19AZD, means a sentence of imprisonment.
State includes the Australian Capital Territory and the Northern Territory.
State offence means an offence against the law of a State.
State offender means a person convicted of a State offence.
State sentence means a sentence imposed for a State offence.
supervision period, in relation to a person who is released on parole or on licence, means the period:
(a) starting when the person is released from prison on parole or licence; and
(b) ending at the earlier of the following times:
(i) the end of the person’s parole period or licence period;
(ii) if the parole order or licence specifies an earlier time at which the supervision period is to end—that earlier time.
Territory does not include the Australian Capital Territory or the Northern Territory.
Territory offence means an offence against the law of a Territory.
Territory offender means a person convicted of a Territory offence.
Territory sentence means a sentence imposed for a Territory offence.
unfit to be tried includes unfit to plead.
victim impact statement has the meaning given by section 16AAAA.
(2) In this Part, expressions in the plural do not imply that expressions in the singular do not include the plural.
16AAAA Victim impact statements
(1) A victim impact statement, for an individual who is a victim of an offence, is an oral or written statement for which the following requirements are satisfied:
(a) the statement must be made by one of the following:
(i) the individual;
(ii) if the court gives leave, a member of the individual’s family;
(iii) a person appointed by the court;
(b) the statement must describe the impact of the offence on the victim, including details of the harm suffered by the victim as a result of the offence;
(c) if the statement is written, the statement must be:
(i) signed or otherwise acknowledged by the maker of the statement; and
(ii) given to both the prosecutor and the offender (or the offender’s legal representative) at a reasonable time before the hearing for determining the sentence to be passed on the offender;
(d) if the statement is to be oral, a written or oral summary of the statement must be given to both the prosecutor and the offender (or the offender’s legal representative) at a reasonable time before the hearing for determining the sentence to be passed on the offender.
(2) However, the court may order that the requirement in paragraph (1)(d) does not apply to a particular oral statement.
(3) The Minister may, in writing, prescribe a form for victim impact statements. Such a form does not restrict how victim impact statements may be made.
(4) The Minister may delegate, in writing, his or her power under subsection (3) to:
(a) the Secretary of the Department; or
(b) an SES employee, or acting SES employee, in the Department.
Division 2—General sentencing principles
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;
(mb) if:
(i) the person’s conduct constituting the offence was motivated, whether wholly or in part, by hatred of another person (the target person) or a group of persons (the target group); and
(ii) that hatred was because of the person’s belief that the target person or persons in the target group are distinguished by race, or national or ethnic origin;
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.
(2AAB) Paragraph (2)(mb) does not apply in relation to an offence against section 80.2A, 80.2B, 80.2BA, 80.2BB, 80.2BC, 80.2BD, 80.2BE, 80.2DA or 80.2DB of the Criminal Code.
(2AAC) Without limiting subparagraph (2)(mb)(i), a person’s conduct constituting the offence is motivated by hatred if, at the time of the conduct, or immediately before or immediately after the conduct, the person demonstrated, or expressed, hostility or malice in respect of the race, or national or ethnic origin, of the target person or the persons in the target group.
(2AAD) For the purposes of paragraph (2)(mb), it is immaterial whether the target person, or members of the target group, actually are distinguished by the particular race, or national or ethnic origin.
(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.
16AA Matters to which court to have regard when passing sentence etc.—Northern Territory offences
(1) In determining the sentence to be passed, or the order to be made, in relation to any person for an offence against a law of the Northern Territory, a court must not take into account 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.
(2) Subsection (1) does not apply in relation to an offence against the following:
(a) sections 33, 34 and 35 of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT);
(c) section 4 of the Aboriginal Land Act 1978 (NT);
(d) sections 111, 112 and 113 of the Heritage Act 2011 (NT);
(e) 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.
(3) In subsection (1):
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.
16AAA Minimum penalties for certain offences
Subject to section 16AAC, if a person is convicted of an offence described in column 1 of an item in the following table, the court must impose a sentence of imprisonment of at least the period specified in column 2 of that item.