Commonwealth Offences In Australia
Commonwealth offences are prosecuted differently to state matters as they are governed by different laws. Although criminal matters are usually dealt with under state laws such as the Crimes Act 1900 (NSW), the Commonwealth has the power to prosecute criminal offences under the Crimes Act 1914 (Cth) and Criminal Code Act 1995 (Cth).
The Crimes Act 1914 (Cth) is the source for sentencing. The Criminal Code contains most of common offences and contains provisions and general principles of criminal responsibility. It is the source for how guilt is established and the elements of an offence.
Under section 3 of the Crimes Act 1914 (Cth), a “Commonwealth offence” means an offence against a law of the Commonwealth. An “offence” is an offence against a law of the Commonwealth, law of a Territory or, a state offence that has a federal aspect. “Federal aspect” means that the offence potentially falls within Commonwealth legislative power (Crimes Act 1914 (Cth) section 3AA).
As each state has their own laws to govern their own state, the sentencing courts must have regard to sentences that are imposed by other States and Territories to ensure the consistency between the States when sentencing an offender for a federal offence. This is implicit in Pt IB Crimes Act 1914 (Cth) and The Queen v Pham (2015) 256 CLR 550.
Additionally, Crimes Act 1914 (Cth) embodies the principle of prison as a last resort. Section 17A(1) Crimes Act 1914 (Cth):
A court shall not pass a sentence of imprisonment on any person for a federal offence … unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.
Where a court passes a sentence of imprisonment for a federal offence, reasons must be given that no other sentence is appropriate. Additionally, restrictions apply on imposing sentences certain minor offences, “property, money or both, whose total value is not more than $2,000” and the offender has not previously been sentenced to imprisonment for any federal, State or Territory offence, unless the court is satisfied that there are exceptional circumstances (Section 17B(1) of the Crimes Act 1914 (Cth).