Last Updated:8 February 2008

List of subheadings:

Crimes Act 1914 (Cth)
Scope of s 16BA
- Overview of federal procedural scheme
- Conditions
---- Judicial discretion
- Consequences
---- Penalty
---- Additional orders
---- Further or later proceedings
States and Territories

 

Commentary on taking other offences into account under the Crimes Act 1914 (Cth)

Two sections in the Crimes Act 1914 (Cth) govern taking other offences into account in federal sentencing, s 16A(2)(b) and s 16BA.

1. Section 16A(2)(b)

Section 16A(2) of the Crimes Act 1914 (Cth) is a general sentencing provision that contains a list of matters a court must take into account, where relevant and known, when passing a federal sentence. Subsection (b) of this list provides that a court must take into account 'other offences (if any) that are required or permitted to be taken into account'.

2. Section 16BA

The procedural scheme for taking other offences into account under federal sentencing is set out in s 16BA of the Crimes Act 1914 (Cth). In Putland v The Queen [2004] HCA 8, [56] Gummow and Heydon JJ stated:

Section 16BA provides a procedure whereby in certain circumstances in passing sentence for convictions the court may take into account offences in respect of which guilt is admitted but there has been no trial.

Under s 16BA of the Crimes Act 1914 (Cth) a court sentencing a federal offender may only take other federal offences or prescribed offences against the law of an external Territory into account: Crimes Act 1914 (Cth) s 16BA(1) and (1)(b). A court cannot take state offences into account under s 16BA: see Conditions below, see also States and Territories.

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Scope of s16BA

The procedural scheme permitting a sentencing court to take other federal offences into account when passing a federal sentence is long standing. Section 16BA was formerly s 21AA of the Crimes Act 1914 (Cth); with the introduction of Part IB it was renumbered.[1] In relation to the former provision Johnston J of the Supreme Court of South Australia remarked in McMillan v Bierwirth (1987) 79 ALR 661, 665:

Section 21AA of the Crimes Act provides a very detailed procedure for the taking into account of other offences.... There then follow very detailed provisions as to what offences can be taken into account, in what way they can be taken into account and what consequences flow from so doing. These provisions are quite elaborate and contrast sharply with the rather informal procedure that exists in South Australia in relation to the same topic...

An examination of the section would appear to indicate that it is intended to be a code and that Parliament intends to limit the taking into account of other offences, beside those of which an accused has been convicted, to those cases in which the procedure is observed (emphasis added).

Johnston J's comments remain applicable to s 16BA. Section 16BA consists of twelve subsections which set out the conditions that must be satisfied and the consequences of taking other offences into account.

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Overview of Federal Procedural Scheme

A 'Form 1' document [2] must be filed in the court listing the federal or prescribed offences the offender wishes to have taken into account (see further Conditions). Once the document has been successfully filed and the offender has admitted guilt in relation to those offences, the court 'may, if it thinks fit,' take all or any of the admitted offences into account in passing sentence for the offence/s in respect of which the federal offender has been convicted: s 16BA(2). On the exercise of the court's discretion see below; see also DPP v Ka-Hung Ip [2005] ACTCA 24, [46-50].

The court is permitted to make orders (of the type listed in sub-s 5) in relation to the offences taken into account but it must not impose any other separate punishment for these offences. The sentence that is imposed by the court cannot exceed the maximum penalty that the court would have been empowered to impose had no additional offences been taken into account: s 16BA(4). For further commentary see Consequences.

Once the offences have been taken into account, the court must certify upon the 'Form 1' document filed in the court the federal offence/s of which the person has been convicted and the offence/s admitted to that have been taken into account. The effect of this is that further proceedings are then prohibited from being brought in relation to the admitted offences unless the conviction for the federal offence or federal offences is quashed or set aside: Crimes Act 1914 (Cth) s 16BA(8). See further Consequences discussed below.

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Conditions

A court may take other offences into account in passing a federal sentence where all of the following conditions are met.

1. 'A person is convicted of a federal offence or federal offences': s 16BA(1).

An offence which is proved but then dismissed or discharged under s 19B of the Crimes Act 1914 (Cth) does not constitute a convicted federal offence for the purposes of s 16BA: R v Boulos (1988) 37 A Crim R 461, 464; Dreezer v Duvnjak [1996] TASSC 160, [22-27].

'Federal offence' is 'an offence against the law of the Commonwealth': Crimes Act 1914 (Cth) s 16(1).

 

2. The Court is satisfied that a document has been filed in the court that:

• is, or to the effect of, the form prescribed for the purpose of this section: s 16BA(1)(a).

The prescribed form is 'Form 1' located in sch 3 of the Crimes Regulations 1900 (Cth): Crimes Regulations 1900 (Cth) reg 3.

• contains a list of the other federal offences 'which the person convicted is believed to have committed' (s 16BA(1)(b)) and wishes to be taken into account or offences against the law of an external Territory that are prescribed for the purposes of this section which the person convicted is believed to have committed (s 16BA(1)(b)).

There are currently no offences against the law of an external Territory prescribed in the Crimes Regulations 1900 (Cth).

Note that sub-s (1)(b) states that the offences to be taken into account are offences the person 'is believed to have committed'. There is no requirement for the person to have been charged with those offences: see R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999) 124.

• has been signed by either -

AND,

• has been signed by the person convicted: s 16BA(1)(c).

 

3. The Court is satisfied that a copy of the document has been given to the person: s 16BA(1)(d).

 

4. The Court 'with the consent of the prosecutor and before passing sentence on the person', has asked the person whether they admit guilt in respect of all or any of the offences specified in the list and if they wish these offences to be taken into account in passing sentence for the offence of which they have been convicted: Crimes Act 1914 (Cth) s 16BA(1).

An admission of guilt made under and for the purpose of s 16BA is not admissible in evidence in any later related proceedings: s 16BA(9), discussed below.

 

5. The court has jurisdiction to take the offences into account.

A court cannot take an indictable offence into account under s 16BA if it would not have jurisdiction to try the offence, regardless of the wishes of the prosecutor and defendant: see Crimes Act 1914 (Cth) s 16BA(3). However, '[s]ubsection 3 does not prevent a court from taking into account an indictable offence where the court has jurisdiction to sentence a person charged with that offence': Crimes Act 1914 (Cth) s 16BA (3A).

 

6. In all the circumstances the court is satisfied that it is proper to take the other offences into account: s 16BA(1)(e); see discussion below.

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Judicial discretion

The sentencer has a discretion whether or not it will permit all or any of the federal offences to be taken into account under s 16BA.

The court must be satisfied that all of the statutory procedures have been complied with: s 16BA(1). This includes a requirement that the court is satisfied that 'in all the circumstances it is proper' to take the listed offences into account (s 16BA(1)(e)). Moreover, s 16BA (2) provides 'the court may, if it thinks fit, in passing sentence on him for the offence or offence of which he has been convicted, take into account all or any of the offences in respect of which the person has admitted his guilt.' In DPP v Ka-Hung Ip [2005] ACTCA 24, [47], the Australian Capital Territory Court of Appeal said '...that the judicial discretion should be actively and carefully considered'.

The court exercises a wide discretion over whether it may be proper, in all the circumstances, to take the other offences into account. For example, courts have held that it is appropriate to take a large number of federal offences into account: see R v Holland [2002] WASCA 265, [3] (in this case 190 offences were taken into account under s 16BA of the Crimes Act 1914 (Cth)).

Section 16BA of the Crimes Act 1914 (Cth) does not address the circumstances where it may or may not be appropriate to take other federal offences into account. Established judicial practice in other jurisdictions favours taking into account offences which are of the same kind and gravity as the principal offence for which the offender has been convicted: R v White [1981] 28 SASR 9, 11-12; Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518, 160.

There is no prohibition on a court sentencing a federal offender from taking serious federal offences into account: see, eg, DPP v Ka-Hung Ip [2005] ACTCA 24 where an offence carrying a maximum penalty of five years imprisonment was taken into account by the Court under s 16BA of the Crimes Act 1914 (Cth).

While some state and territory sentencing legislation expressly prohibits a court from taking into account offences punishable by life imprisonment,[3]the Crimes Act 1914 (Cth) does not contain an express prohibition. Nonetheless, a court may determine that it is not proper to take a serious federal offence into account where in the circumstances those offences should be separately investigated and prosecuted. [4]

On the issue of taking serious offences into account Spigelman CJ (Wood CJ at CL, Grove, Sully and James JJ agreeing) said in the NSW guideline judgment Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518, [50]:

As long as the most serious offences or, in the case of similar offences, an appropriate range of offences, are included on the indictment, there is no objection to the inclusion of some offences on a Form 1. It would normally be inappropriate to include more serious offences on a Form 1, where the maximum sentence available for the offence on an indictment would be insufficient to allow for the total criminality revealed by the whole course of the offender's conduct to be appropriately reflected in the sentence (emphasis added).

Consideration of the rationale for taking offences into account may assist the court in determining whether it is proper to take the offences into account in the circumstances of each case. The New South Wales Court of Appeal observed that two public benefits have been consistently raised in relation to taking other offences into account. Spigelman CJ (Wood CJ at CL, Grove, Sully and James JJ agreeing) said in Attorney General's Application [2002] NSWCCA 518, [63-64]:

First, the opportunity for an offender to emerge from the sentence for the primary offence with a clean slate promotes the objective of rehabilitation... Secondly, there is a utilitarian value in the admission of guilt which may save resources for law enforcement agencies, particularly where investigations are continuing...

On issues that arise that are not in the public's interest, Spigelman CJ (Wood CJ at CL, Grove, Sully and James JJ agreeing) said in Attorney General's Application [2002] NSWCCA 518, [65-67]:

...Law enforcement agencies and even courts may receive a perceived organisational benefit from increased disposal rates, but such institutional advantages should not be confused with the public interest.

...By the reason of express statutory power, a sentencing judge must assess whether it is appropriate to proceed to sentence on a basis where no separate penalty is to be imposed for admitted offences. There will be cases in which, for example, the administration of justice could be bought into disrepute by the court proceeding to sentence a person guilty of a course of criminal conduct on a manifestly inadequate, unduly narrow, or artificial basis.

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Consequences of Taking Other Federal Offences Into Account

Section 16BA clearly sets out the consequences for the offender of having other federal offences taken into account. For example, there are restrictions upon the sentencing court with regard to how it may take other offences into account and the effect that this may have on the sentence imposed.

The subsections dealing with the consequences of taking other federal offences into account are discussed below. The provisions have been set out under three broad headings. First, the penalty that can be imposed. Second, additional orders that may be made by the court in relation to the offence/s taken into account. Third, the effect on later or further proceedings of taking other offences into account under s 16BA.

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Penalty

The penalty imposed for the convicted federal offence may be increased as a result of taking other offences into account and having regard to the offender's overall culpability.

See R v Segal [2006] NSWSC 621 where the offender pleaded guilty to four offences against s 31 of the Financial Transaction Reports Act 1988 (Cth) and admitted guilt in relation to a further five offences under s 16BA of the Crimes Act 1914 (Cth). In his remarks on sentence Hidden J stated:

In dealing with the four offences on the indictment, I must have regard to the criminality disclosed by the additional offences on the form under s16BA of the Crimes Act (emphasis added).[5]

Similarly, in R v Walters [2001] NSWSC 640, [33] Sully J said:

I propose to bring these matters to account, not in a precisely quantified calculation, but by regarding them in a more general way as adding to the overall culpability of the prisoner; and by structuring the sentences to be passed for the ten indicted offences in a way that reflects the combined overall culpability of those ten offences and of the five additional matters (emphasis added).

Note however, when determining the sentence to be passed for the convicted offence, the court takes the other admitted offences 'into account'. The court cannot impose a separate sentence for these offences. Accordingly, the sentence imposed must not exceed the maximum penalty for the offence of which the person is convicted (s 16BA(4)).

In R v Berlinsky [2005] SASC 316 the appellant had been convicted and sentenced for four counts of fraud against the Commonwealth and one count of dishonesty obtaining a gain. Ms Berlinsky had asked the sentencing court to take into account an additional seven offences. In reviewing the sentence imposed Doyle CJ commented upon the operation of the rule in s 16BA(4). Doyle CJ said:

Each of these [additional admitted] offences attracted a maximum penalty of imprisonment. But when taken into account, as they were, the penalty imposed could not exceed the maximum penalty for the offences with which she was charged: s 16BA of the Crimes Act 1914.[6]

See also DPP v Ka-Hung Ip [2005] ACTCA 24, [49] where the Australian Capital Territory Court of Appeal remarked on the operation of s 16BA. The court stated:

Where the sentencer decides to take the listed matter into account, the matter must really and substantially, that is to say fully, be taken into account, even though, as Attorney General’s Application [[2002] NSWCCA 518] makes clear, it is only the principal offence (and only its maximum available sentence) in relation to which sentence is being passed.

In the NSW guideline judgment of Attorney General's Application Spigelman CJ (Wood CJ at CL, Grove, Sully and James JJ agreeing) remarked that the penalty imposed for the principal offence is often increased as a result of a court giving greater weight to the sentencing factors of personal deterrence and retribution when taking other offences into account: see Attorney General's Application [2002] NSWCCA 518, [42-44].

See further R v Lam [2002] NSWCCA 190 where the New South Wales Court of Criminal Appeal considered whether separate sentences had been imposed in respect of offences taken into account.

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Additional orders

The court may make orders in relation to the offences taken into account, 'with respect to reparation, restitution, compensation, costs and forfeiture as it would have been empowered to make if the person had been convicted before the court' of those offences (s 16BA(5)).

Subsection 5 is limited to the types of orders listed. The section specifically provides that the court 'shall not otherwise impose any separate punishment for the offence[s].'[7]

The federal offender is granted a right to appeal orders made under sub-s 5: Crimes Act 1914 (Cth) s 16BA(6). And an order under sub-s 5 lapses if the conviction for the federal offence or federal offences is quashed or set aside: Crimes Act 1914 (Cth) s 16BA(7).

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Further or later proceedings

For other offences to be taken into account the person must admit guilt in respect of these offences: ss 16BA(1) and (2). However, sub-s (9) ensures that such admissions are not admissible in any proceedings in respect of the offence or any offence listed on the 'Form 1' document.

Subsection (10), more broadly, prohibits an offence taken into account under s 16BA from being regarded for any purpose as an offence of which the person has been convicted.

Reference may be made or evidence given of the fact that an offence was taken into account. This may occur in or in relation to any criminal proceeding, where the law allows reference to be made or evidence to be given of the fact that the person was convicted of the federal offence and the law would similarly have allowed this to occur for the other offences had the person been convicted of these offences: see s 16BA(11).

Section 16BA(12) then provides: '[t]he fact that an offence was taken into account... may be proved in the same manner as the conviction... in relation to which it was taken into account may be proved.'

And finally, once the court has certified the 'Form 1' document further proceedings are prohibited from being brought in relation to the admitted offences unless the conviction for the federal offence or federal offences is quashed or set aside: Crimes Act 1914 (Cth) s 16BA(8).

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STATES AND TERRITORIES

Most States and Territories have statutory provisions allowing other offences to be taken into account in sentencing. However, a court sentencing a federal offender which is satisfied that it is appropriate to take other offences into account must operate under s 16BA of the Crimes Act 1914 (Cth) not under state legislative provisions. As Professors Fox and Freiberg state

The application of... state laws to commonwealth offenders is, of course, subject to exclusion or modification by federal laws defining the matter in which offences against the Commonwealth are to be dealt with. Thus, state procedures allowing other offences to be taken into consideration at sentencing... are excluded by virtue or the existence of similar provisions in the Crimes Act 1914 (Cth) s 16BA, expressly relating to federal offenders (emphasis added).[8]

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Footnotes

[1] Putland v The Queen [2004] HCA 8, [56].

[2] The certificate template can be found in 'Form 1' located in sch 3 of the Crimes Regulations 1900 (Cth).

[3] see Crimes (Sentencing Procedure) Act 1999 (NSW) s 33(4)(b); Crimes (Sentencing) Act 2005 (ACT) s 55(2). See further Sentencing Act 1991 (Vic) s 100(1)(a); Sentencing Act 1995 (NT) s 107(1)(a); Sentencing Act 1997 (Tas) s 89(1)(a) which prohibits offences of treason or murder from being taken into account.

[4] R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999) 126. See further discussion of this issue in Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518, 160.

[5] R v Segal [2006] NSWSC 621, [13].

[6 ] R v Berlinsky [2005] SASC 316.

[7] Crimes Act 1914 (Cth) s 16BA(5).

[8] R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999) 46.

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