Sentencing for Commonwealth or Federal offences involves different sentencing options and considerations compared to state sentencing. If you have been charged with a Commonwealth offence, it is important you understand the differences so you can make informed decisions.

After a person has been found guilty of a Commonwealth offence, a court can impose any one of the penalties set out below, in accordance with the Crimes Act 1914 (Cth) (‘the Act’).

However first, it’s essential to understand the considerations a court sentencing a federal offender takes into account.

Sentencing Considerations

When determining an appropriate sentence, a magistrate or judge will consider all the relevant and known circumstances of the offender and the offence. However, in doing so, a Court must have regard to the factors listed in section 16A(2) of the Act, which include:

1. The nature and circumstances of the offence;
2. Other offences that are to be considered;
3. If the offence forms part of a series of criminal acts of the same or similar character;
4. The personal circumstances of any victim;
5. Any injury, loss or damage resulting from the offence;
6. Any Victim Impact Statement;
7. The degree of which contrition is shown by the offender;
8. The extent to which a person has failed to comply with any specified order or obligation relating to pre-trial or ongoing disclosures of the offence;
9. The circumstances the offender plead guilty;
10. The offender’s cooperation with law enforcement;
11. The deterrent effect on the offender;
12. The deterrent effect on another person;
13. Ensuring the person is adequately punished;
14. The character, antecedents, age, means and physical or mental condition of the offender;
15. The offenders standing in the community and whether this aided the commission of the offence;
16. Rehabilitating the offender; and
17. The effect that any sentence would have on the offender’s family or dependents.

These factors are a non-exhaustive list, meaning that a court can have regard to any other factor it sees fit when imposing an appropriate sentence on an offender.

Sentence Categories

Commonwealth sentences or outcomes can be categorised as follows:

1) Where no criminal conviction is recorded; or

2) Post conviction sentencing options; or

3) A diversion order under the Commonwealth mental illness provision.

Avoiding a criminal conviction

Just like in State matters, a Commonwealth sentencing Court can exercise its discretion and discharge an offender without conviction. There are two ways a Court can impose this order under section 19B of the Act.

• Section 19B(1)(c): dismissal of the charge. This is when a Court may use their discretion to dismiss a charge and not record a conviction.
• Section 19B(1)(d): conditional discharge. This is when a Court may choose to discharge an offender without conviction on the following conditions: 

1. The person will be of good behavior for a period specified by the Court (but not exceeding 3 years);
2. Upon payment of the reparation, restitution, compensation or costs as stipulated by the Court; and
3. The person complies with any other orders the Court sees fit.

When considering whether to record a non-conviction, a court must have regard to the following factors:

• The character, antecedents, age, health or mental condition of the offender;
• The extent to which the offence is trivial in nature; or
• The extent to which the offence was committed under extenuating circumstances.

Post Conviction Sentencing Options

If a court is of the view that a conviction must be recorded, it may impose one or more of the following options (assuming the offender is being sentenced by a NSW court exercising federal jurisdiction):

1. Conviction recorded with no penalty
2. Fine
3. Recognizance Release Order
4. Suspended Imprisonment
5. Intensive Correction Order
6. Full-time Imprisonment

1) Conviction recorded with no penalty

This type of sentencing involves a court recording a a criminal conviction, but then without any further penalty being imposed.

2) Fine

Under Section 4B of the Act, a court may impose a pecuniary penalty on an offender. This requires the payment of a monetary fine. The maximum fine that can be ordered by a court is formulated by the maximum number of penalty units stipulated for that offence. For Commonwealth offences each penalty unit is $222A fine can be imposed in addition to another sentence, for example imprisonment.

As an example, Possessing Controlled Drugs carries a maximum of 400 penalty units or 2 years imprisonment or both. In this case the maximum fine a Court could order is $88,800.

3) Recognizance Release Order

A Recognizance Release Order (RRO) may be imposed by a court under Section 20(1)(a) of the Act. This type of sentence involves a court releasing an offender without passing sentence. A RRO allows for the offender to be released into the community prior to serving any of their imprisonment sentence.

This order is only effective after the offender has entered into a recognizance, usually requiring the offender to enter into an agreement to forfeit money if they fail to comply with the agreement, as an assurance of complying with conditions specified by the court.

The general conditions that a court may impose on an offender when making a RRO are the same as when imposing a Conditional Release Order in a State matter.

If an offender is caught breaching their RRO, a Court may:

• Take no action; or
• Order the offender pay a monetary penalty of up to $1000; or
• Extend the period of the conditions in the RRO; or
• Revoke the RRO and order the offender to serve the remainder of their prison sentence; or
• Revoke the RRO and impose an ‘Intensive Corrections Order’ on the offender.

In addition, any security which was paid as part of the recognizance may be forfeited.

4) Suspended Imprisonment Sentence

A suspended imprisonment sentence may be imposed by a court under Section 20(1)(b) of the Act. This sentencing option involves an offender being sentenced to a period of imprisonment, but released immediately into the community immediately and serving that sentence in the community.

It is important to note that, under Section 20(1)(b)(i)-(iii) of the Act, a suspended imprisonment sentence cannot be imposed for certain matters involving Commonwealth child sex offences.

5) Intensive Correction Order

A court may impose an Intensive Correction Order (ICO) under Section 20AB of the Act when sentencing an offender. This sentencing option involves an offender being convicted and sentenced to a term of imprisonment, however the offender serving that term in the community through an Intensive Correction Order. An ICO at the Commonwealth level functions the same as an ICO in the state of NSW.

For more information about an ICO, see ‘Intensive Correction Orders’ on our Sentencing Options Page.

6) Full-time Imprisonment

Under Section 17A of the Act, a court may sentence an offender to a term of full-time imprisonment. This is the harshest penalty option available to the court and involves an offender serving a period of time in a correctional centre.

A sentence of full-time imprisonment can be ordered under Section 20(1)(b), where the offender is released on recognizanze after sercving a period of the total sentence in custody. Alternatively, for sentences over 3 years, the court imposes a parole and non-parole period.

Depending on the offence committed, an offender will be eligible for parole after the non-parole period has been served. If an offender is released on parole they must comply with the conditions as specified by the court during the parole period, including to be of good behaviour and to not commit any offences.

If an offender breaches their parole conditions, a court may revoke the offenders parole and order that they serve the remainder of their imprisonment sentence in full-time custody.

Commonwealth Mental Illness Provision

In accordance with Section 20BQ of the Act, where a person is suffering a mental illness or intellectual disability at the time of making the application, a court may dismiss the charge and discharge the offender. It is important to note that the applicant must establish that they have a mental illness or intellectual disability at the time of the hearing, not at the time of the alleged offensive conduct.

When making an order under Section 20BQ, a court has the option to impose certain conditions on the applicant. Examples of common conditions that are associated with this order include:

• The person engaging in mental health treatment;
• The implementation of a support plan for the person;
• The person taking part in therapy.

A court also has the discretion to make an order under this section with no conditions.

Significantly, if a person is successful in their Section 20BQ application, no conviction or finding of guilt is recorded.