R v Tran - [2019] SASCFC 5

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TRAN
[2019] SASCFC 5
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Lovell)
17 January 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE
The respondent pleaded guilty to one count of importing tier two goods and one count of intentionally making a false statement on an incoming passenger card. From a starting point of two years and six months imprisonment, and applying a discount for the respondent’s plea, the sentencing Judge imposed a sentence of one year and eight months imprisonment. The sentencing Judge made a recognizance release order which was to take effect after the first ten months of the sentence of imprisonment was served by the respondent. The sentencing Judge further ordered that the ten months not subject to the recognizance order was to be served on home detention as opposed to at a correctional services institution.
The Commonwealth Director of Public Prosecutions seeks permission to appeal on the grounds that:
1. The Crimes Act 1914 (Cth) did not authorise the Judge to order that the respondent serve the sentence of ten months imprisonment before release on the recognizance order on home detention.
2. The sentencing Judge was not authorised to decline to impose any further penalty on the second count.
3. The sentencing Judge erred in making a finding that the respondent was a low risk of re-offending.
Held, per Curiam, granting permission to appeal and allowing the appeal on the first ground:
1. It was not open to the sentencing Judge to order that only a part of the sentence of imprisonment imposed be served on home detention (at [6], [61]-[62]).
2. As a matter of law, the sentencing Judge was not authorised to decline to impose any further penalty on the second count however; a nominal penalty could have been properly imposed and the permission to appeal should be refused on the second ground (at [16]).
3. It was open to the sentencing Judge to find that the respondent posed a low risk of re-offending and permission to appeal should be refused on the third ground (at [18]).
4. Sentence imposed by the Judge set aside. In lieu thereof the respondent is sentenced to imprisonment of 11 months commencing on 17 January 2019 but released forthwith on a recognizance release order for three years pursuant to s 20(1)(b) of the Crimes Act (at [65]).
Customs Act 1901 (Cth) ss 233BAB, 234; Crimes Act 1914 (Cth) ss 20, 20AB, 19AB, 19AC, 16A, 16B, 20A; Criminal Law Sentencing Act 1988 (SA) ss 33BB, 38A, 20AA; Judiciary Act 1904 (Cth) ss 68, 80; Sentencing Act 1991 (Vic) ss 36-48; Correctional Services Act 1983 (SA) s 22; Crimes Regulations 1900 (Cth) Reg 6, Item 6A; Acts Interpretation Act 1901 (Cth) s 10A, referred to.
Direction of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 37; Putland v The Queen (2004) 218 CLR 174; Johnson v R (2004) 205 ALR 346; Hili v R (2010) 242 CLR 520; Atanackovic v R (2015) 45 VR 179, discussed.

R v TRAN
[2019] SASCFC 5
Court of Criminal appeal: Kourakis CJ, Blue and Lovell JJ

THE COURT: This is an application for permission to appeal brought by the Commonwealth Director of Public Prosecutions (the Director) against sentences imposed on 27 April 2018 on the respondent, Mr Alexander Tran, in the District Court on his convictions for offences of intentionally importing child pornography contrary to s 233BAB(5) of the Customs Act 1901 (Cth) and intentionally making a statement on an incoming passenger card reckless as to the fact that the statement was false contrary to s 234(1)(d) of the Customs Act 1901 (Cth). The maximum penalty for the former offence was imprisonment for ten years or 2,500 units = $450,000, or both, and the latter $45,000.
On the first count the Judge imposed a sentence of imprisonment for one year and eight months to be served on a home detention order for the first ten months and thereafter to be released on a recognizance to be of good behaviour for three years pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) (the Crimes Act). On the second count a conviction was recorded but no further penalty imposed.
The Director applies for permission to appeal on the grounds that:
1the Crimes Act did not authorise the Judge to order that the respondent serve the sentence of 10 months imprisonment, before release on the recognizance release order, on home detention;
2the Judge was not authorised to decline to impose any further penalty on the second count;
3the Judge erred in making a finding that the respondent was a low risk of re‑offending.
We refuse permission on ground 2 even though the proposition of law underpinning the ground is correct, because the Director accepts that a nominal penalty could properly have been imposed.
We also refuse permission on ground 3. The ground challenges a finding on a question of fact peculiar to the respondent. It was a finding which was open to the Judge even though her Honour did not accept the respondent’s assertion that he had no sexual interest in pre-pubescent females.
We give permission on the first ground. Section 20AB of the Crimes Act does not pick up and apply s 33BB of the Criminal Law (Sentencing) Act 1988 (SA) (the 1988 Sentencing Act) to a period of imprisonment which is subject to a recognizance release order made pursuant to s 19AC of the Crimes Act. The Judge was therefore not empowered to order that only a part of the sentence of imprisonment that her Honour imposed be served on home detention. The home detention order should be set aside.
However, on the sentencing hearing, the Director did not oppose a primarily rehabilitative sentence. Even though the home detention order must be set aside, it is appropriate to fashion a community based corrections order by imposing restrictive conditions on a recognizance release order made pursuant to s 20(1)(b) of the Crimes Act. That order is set out in [65] below.
The facts
On 14 May 2017 Mr Tran arrived at the Adelaide International Airport on a flight from Hong Kong. He was returning from Japan where he had worked as an English teacher and had pursued his interest in photography. He falsely answered ‘no’ to a question on an incoming passenger card which asked if he was bringing into Australia illegal pornography. Mr Tran’s luggage was searched and child pornography was found on two external hard drives. In total, the hard drives contained 2,120 images falling within all six of the common form categories by which such material is classified. The child pornography falling with categories 1-5 depicted children as young as 12 months through to mid-teens posing provocatively and being offended against sexually. The worst of the images depicted sadism and bestiality. Category 6 was animated material. The Judge described the material as ‘abhorrent’.
Mr Tran is 32 years of age. He has no prior convictions. He has tertiary qualifications in biotechnology.
Within a fortnight of his arrest, Mr Tran sought professional help to address his interest in child pornography. The Judge, correctly, placed great weight on what her Honour described as Mr Tran’s almost immediate steps to ‘obtain professional assistance’. The Judge accepted that Mr Tran had the material for his personal use only and did not intend to provide it to others. However, the Judge rejected Mr Tran’s explanation that the images of very young children were on the hard drive because he was too lazy to delete them. Nonetheless, the Judge accepted the opinion of Mr Elmer, the psychologist whom Mr Tran consulted for treatment, that there was a ‘low risk of re-offending’ in Mr Tran’s case. The Judge was confident that Mr Elmer reached that opinion well knowing that Mr Tran had a sexual interest in pre-pubescent girls. Her Honour found that Mr Tran’s decision to seek help reduced, but did not eliminate, the need for personal deterrence.
References provided to the Judge spoke of Mr Tran’s otherwise good character and of the remorse that he had expressed to his friends.
The Judge indicated that but for his plea of guilty her Honour would have imposed a period of imprisonment of two years and six months. Having regard to Mr Tran’s early guilty plea and contrition, the sentence was reduced to one year and eight months.
The Judge determined to make a recognizance release order:
I am unable to release you forthwith. I do not consider that such a sentence will be of a severity appropriate in all the circumstances.
I have determined that the minimum time justice requires you to serve is 10 months. I have taken into account that you have spent already approximately 30 hours in custody.
The Judge then considered whether or not to make a home detention order with respect to the period of 10 months imprisonment:
I think you have got to the stage in rehabilitation such that the safety of the community will not be threatened by you serving a period on home detention. You will be strictly monitored for the 10 months. As I have stated Mr Tran, the images and videos you brought into this country are abhorrent and I cannot stress enough to you, if you had not embarked upon the rehabilitative path that you did as soon as you did, then I would not have ordered you serve the 10 month period on home detention.
I therefore make the order that you serve the 10 month period of one year and eight months on home detention.
Ground 2
It is convenient to deal first with grounds 2 and 3.
The Judge might, consistently with the Crimes Act, have imposed a nominal penalty. No purpose is served by granting the Director permission to appeal in order for this Court to impose a nominal penalty. We refuse permission to appeal against the failure to impose any further penalty on the second count.
Ground 3
The Director submits that the Judge was bound to make a factual finding on the nature and scope of Mr Tran’s deviant sexual interest, that the Judge failed to do so, and that the sentence was therefore vitiated by error. It is implicit in the Judge’s reasons, which are summarised in [10]-[14] above, that the Judge found that Mr Tran did have a deviant sexual interest in pre-pubescent girls. Despite that finding the Judge found that Mr Tran posed a low risk of reoffending. It follows that the minor premise on which the Director propounds this ground is not made out. We accordingly refuse permission to appeal.
We observe that the major premise is also doubtful. A judge is not obliged to make findings of fact on all of the factual issues relevant to the sentencing of an offender. The evidence may not allow a finding, one way or another, to be made. It is not uncommon that a judge must sentence in circumstances when some, or even many, material sentencing considerations are uncertain or unknown. Having said that, on the evidence in this case, once the appellant’s claim of laziness was rejected, the overwhelming inference from the nature and number of the images was that he had an interest in pre-pubescent females.
State and Commonwealth sentencing regimes
Before addressing ground 1, it is useful to set out an overview of the State and Commonwealth sentencing regimes insofar as they involved suspended sentences and home detention as at the date of sentencing, that is 27 April 2018. It should be noted that with effect on 30 April 2018 the 1988 Sentencing Act was repealed and replaced by the Sentencing Act 2017 (SA) (the 2017 Sentencing Act).
Under s 32 of the 1988 Sentencing Act, if a court sentenced an adult to imprisonment (whether to be served in prison or on home detention) for 12 months or more, ordinarily[1] the court was required to fix a non-parole period. If the sentence was less than 12 months, the court was not to fix a non-parole period.
[1] Unless it was inappropriate to fix a non-parole period having regard to the gravity of the offence or other circumstances: s 32(5)(e).
Under s 38 of the 1988 Sentencing Act, if a court sentenced an adult to imprisonment and certain preconditions were met, the court was empowered to suspend the sentence upon the defendant entering into a bond to be of good behaviour for a specified period. Under s 38(2a), if a court sentenced an adult to imprisonment for more than three months and less than 12 months, the court was empowered to suspend the balance of the sentence after the defendant served a specified period (at least one month) in prison. In each case, if the defendant breached a term of the bond, the defendant was liable to serve the sentence, or the balance of the sentence, as the case may be, in prison.
Under s 33B of the 1988 Sentencing Act, if a court sentenced an adult to imprisonment and certain preconditions were met, the court was empowered to suspend the sentence under Division 3A and order that the defendant serve the sentence on home detention. Unlike the position under the Sentencing Act 2017 (SA) s 33BB treated home detention as a form of suspended sentence. One of the preconditions to be met before suspending the sentence under s 33B was that the court considered that the sentence should not be suspended under s 38.
It can be seen that under the 1988 Sentencing Act the fixing of a non-parole period and partial suspension of a sentence were mutually exclusive. By contrast, fixing of a non-parole period and full suspension were not mutually exclusive and on the contrary fixing of a non-parole period was ordinarily mandatory if a sentence of imprisonment of at least 12 months was suspended.
Equally, under the 1988 Sentencing Act suspension or partial suspension under s 38 and suspension on home detention under s 33BB were mutually exclusive.
There is an important difference between a sentence comprising a non‑parole period served in prison and a period for which the defendant is eligible for parole in the community on the one hand and a sentence which is suspended (wholly or partially) on the other hand. In the case of parole the length of the period served in prison and the period served on parole in the community is always equal to the period of the head sentence. However, in the case of a suspended sentence, the length of the bond pursuant to which the sentence is suspended can be, and usually is, different to the length of the head sentence: in cases where the head sentence is relatively small, the period of suspension will usually be longer than the head sentence.
Under the Commonwealth legislation, s 19AB of the Crimes Act provides that, if a court sentences a person for one or more federal offences to imprisonment for more than three years, ordinarily[2] the court must fix a non‑parole period. If the federal sentence is or sentences are three years or less, ordinarily the court is not to fix a non-parole period.[3]
[2] Unless it is inappropriate to do so having regard to circumstances or the defendant will be serving a State or Territory sentence after expiry of the federal sentence or sentences: s 19AB(3).
[3] Section 19AC(1).
Under s 19AC and 20(1)(b) of the Crimes Act, if a court sentences a person for one or more federal offences to imprisonment for three years or less, ordinarily[4] the court must make a recognizance release order directing that the defendant be released either forthwith or after serving a specified period upon giving security to be of good behaviour and to comply with conditions fixed by the court. If the sentence is or sentences are for not more than six months, it is not mandatory for the court to make a recognizance release order. [5]
[4] Unless it is inappropriate to do so having regard to circumstances or the defendant will be serving a State or Territory sentence after expiry of the federal sentence or sentences: s 19AC(4).
[5] Section 19AC(4).
It can be seen that under the Commonwealth legislation the fixing of a non-parole period and making of a recognizance release order are mutually exclusive.
The Commonwealth concept of a recognizance release order is essentially the same as the State concept of partial or full suspension of sentence. However the Commonwealth regime has different rules as to the length of the head sentence for which a recognizance release order is permissible and makes it ordinarily mandatory to make a recognizance release order within those limits. Moreover the Crimes Act contains its own provisions for enforcement of breaches of recognizance release orders (ss 20A and 20AA) which cover the field to the exclusion of ss 57 and 58 of the 1988 Sentencing Act.
The Crimes Act does not in its own terms provide for home detention. However s 20AB empowers a State court in a participating State (of which South Australia is one) to pass amongst others a sentence known as or similar to a community custody order or community correction order if the court is empowered to pass such a sentence under State law in respect of State offenders in corresponding cases. As will be seen, s 20AB is critical to the disposition of this appeal.
Sections 19AB, 19AC and 20 relevantly provide:
19ABWhen court must fix non‑parole period
(1)Subject to subsection (3), a court must fix a single non‑parole period in respect of a federal sentence or federal sentences if:
(a)     a person is convicted of a federal offence, or of 2 or more federal offences at the same sitting; and
(b)the court imposes the sentence or sentences on the person; and
(c)either or both of the following subparagraphs apply:
(i)any of the sentences is a federal life sentence;
(ii)the sentences, in the aggregate, exceed 3 years; and
(d)     when the court imposes the sentence or sentences, the person is not already serving or subject to a federal sentence.
…
Non‑parole period not appropriate
(3)A court may decline to fix a non‑parole period under this section if:
(a)     the court is satisfied that a non‑parole period is not appropriate, having regard to:
(i)the nature and circumstances of the offence or offences; and
(ii)the antecedents of the person; or
(b)     the person is expected to be serving a State or Territory sentence on the day after the end of the federal sentence, or the last to be served of the federal sentences, as reduced by any remissions or reductions under section 19AA.
…
19ACWhen court must fix a recognizance release order
(1)Subject to subsections (3) and (4), where:
(a)     a person is convicted of a federal offence, or of 2 or more federal offences at the same sitting; and
(b)     the court imposes on the person a federal sentence that does not exceed, or federal sentences that, in the aggregate, do not exceed, 3 years; and
(c)     at the time the sentence or sentences are imposed the person is not already serving or subject to a federal sentence;
the court must make a single recognizance release order in respect of that sentence or those sentences and must not fix a non‑parole period.
…
(3)Where:
(a)the federal sentence or federal sentences referred to in paragraph (1)(b); or
(b)the unserved portions of the federal sentences referred to in paragraph (2)(b);
in the aggregate, do not exceed 6 months, the court is not required to make a recognizance release order.
(4)A court may decline to make a recognizance release order in respect of a person if:
(a)the court is satisfied that such an order is not appropriate, having regard to:
(i)the nature and circumstances of the offence or offences concerned; and
(ii)the antecedents of the person; or
(b)     the person is expected to be serving a State or Territory sentence on the day after the end of the federal sentence, or the last to be served of the federal sentences, as reduced by any remissions or reductions under section 19AA.
…
20Conditional release of offenders after conviction
(1)     Where a person is convicted of a federal offence or federal offences, the court before which he or she is convicted may, if it thinks fit:
(a)    by order, release the person, without passing sentence on him or her, upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions:
(i)     that he or she will be of good behaviour for such period, not exceeding 5 years, as the court specifies in the order;
(ii)that he or she will make such reparation or restitution, or pay such compensation, in respect of the offence or offences (if any), or pay such costs in respect of his or her prosecution for the offence or offences (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay):
(A)    on or before a date specified in the order; or
(B)in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs—by specified instalments as provided in the order;
(iii)that he or she will pay to the Commonwealth such pecuniary penalty (if any) as the court specifies in the order (being a penalty not exceeding the maximum amount of the penalty that, in accordance with subsection (5), the court may specify in respect of the offence or offences) on or before a date specified in the order or by specified instalments as provided in the order;
(iv)that he or she will, during a period, not exceeding 2 years, that is specified in the order, comply with such other conditions (if any) as the court thinks fit to specify in the order; or
…
(b)sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a) either forthwith or after he or she has served a specified period of imprisonment in respect of that offence or those offences that is calculated in accordance with subsection 19AF(1).
Ground 1

Section 68 of the Judiciary Act 1904 (Cth) (the Judiciary Act) applies the laws of the States or Territories to the conviction, including sentence, of persons charged with offences against the laws of the Commonwealth ‘so far as they are applicable’.
Section 80 of the Judiciary Act provides that if Commonwealth laws are not applicable or are insufficient to provide adequate remedies or punishment, the common law and State and Territory laws of the court exercising federal jurisdiction shall govern those courts insofar as they are applicable and not inconsistent with the Constitution and Commonwealth laws.
It is well accepted that the Crimes Act does not set out a comprehensive code for the sentencing of federal offenders. In Director of Public Prosecutions (Cth) v El Karhani[6] the New South Wales Court of Criminal Appeal held that the general common law sentencing considerations of general and personal deterrence, punishment, community protection and rehabilitation and principles of sentencing are applicable to the sentencing of Commonwealth offenders. The Court held that those principles are not inconsistent with s 16A of the Crimes Act because s 16A(1) requires that the sentence imposed ‘is of severity appropriate in all of the circumstances of the offence’. In Putland v The Queen[7] Gleeson CJ observed that general deterrence obviously remains a relevant sentencing consideration even though s 16A of the Crimes Act did not then expressly refer to it.
[6] (1990) 21 NSWLR 37.
[7] (2004) 218 CLR 174.
In Putland the High Court held that s 68 of the Judiciary Act 1903 (Cth) picked up the facilitative provision of the Sentencing Act of the Northern Territory which allowed a single sentence to be imposed on the sentencing of an offender for multiple offences.
Gummow and Heydon JJ said:[8]
The appellant relies on that reasoning, but it does not apply in the present case. First, as is apparent from the Explanatory Memorandum for the Bill which became the 1990 Act (which introduced Pt 1B), the 1990 Act had various objectives in amending the Crimes Act. These varied between the making of exhaustive provision on some subjects and supplementary provision on others. An example of the former is the provision by Div 4 of Pt 1B (ss 19AB-19AK) of what the Memorandum had identified as “a separate regime for fixing federal non-parole periods rather than relying on applied State or Territory legislation”. The appellant relies in particular upon Div 2 of Pt 1B (ss 16A-16D) and Div 3 (ss 16E-19AA), headed respectively “General sentencing principles” and “Sentences of imprisonment”. These answer the broad but non-exhaustive terms of the Memorandum “to give further guidance to the courts when sentencing federal offenders”.
Secondly, Pt 1B is to be read with the other and pre-existing provisions of the Crimes Act, which include s 4K. The presence of s 4K denies any proposition that Pt 1B “covered a field” as an exhaustive statement of the will of the Parliament with respect to sentencing for federal offences. This consideration led the appellant to redraw this postulated field so as to exclude sentencing for summary offences. But that process encounters the difficulty that, on their face, those express provisions which Pt 1B does make are not so confined.
[8] (2004) 218 CLR 174 at [52]-[53].
In Johnson v The Queen[9] Gummow, Callinan and Heydon JJ stated that ‘except to the extent stated in ss 16A and 16B of the Crimes Act 1914 (Cth), general common law and not peculiarly local or State statutory principles of sentencing are applicable to the sentencing of federal offenders’:[10]
The proposition contained in the first of the appellant’s grounds is largely uncontroversial: that except to the extent stated in ss 16A and 16B of the Act, general common law and not peculiarly local or state statutory principles of sentencing are applicable. That common law principles may apply follows from the use of the words ‘of a severity appropriate in all the circumstances of the offence ...’ in s 16A(1) and the introductory words ‘In addition to any other matters ...’ to s 16A(2) of the Act.
[9] (2004) 78 ALJR 616.
[10] (2004) 78 ALJR 616 at [15].
Accordingly the Court held that the common law sentencing principle of totality was applicable to the sentencing of Commonwealth offenders and was consistent with the application of s 16A of the Crimes Act.
In Hili v The Queen[11] the High Court explained that s 68 of the Judiciary Act does not pick up those provisions of State laws which empower State courts to fix non‑parole periods when sentencing offenders against State laws. The plurality in Hili, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, summarised the position as follows:[12]
As was explained in Putland v The Queen, Pt IB of the Crimes Act is not ‘an exhaustive statement of the will of the Parliament with respect to sentencing for federal offences’. As noted earlier, there are some powers given by State or Territory law in relation to the sentencing of offenders that are picked up and applied by s 68(1) of the Judiciary Act when a court, exercising federal jurisdiction, sentences a federal offender. So, for example, in Putland, the Court held that s 68(1) picked up a provision of Northern Territory legislation relating to the imposition of an aggregate term of imprisonment.
In addition, there are respects in which Pt IB of the Crimes Act itself refers to and picks up State and Territory legislation affecting service of a sentence of imprisonment. Those provisions of the Crimes Act include: s 16E concerning the commencement of sentences; s 18(2) concerning imprisonment in a particular kind or class of prison; s 19A concerning detention of federal offenders in State or Territory prisons; s 19AA concerning remissions and reductions of sentences; and s 19AZD concerning leave of absence for and pre-release of prisoners. But Div 4 of Pt IB (which deals with the fixing of non-parole periods and the making of recognisance release orders) does not expressly engage any State or Territory law which prescribes how non-parole periods are to be fixed in sentencing under State or Territory law. And, as was pointed out in Putland, the provisions of Div 4 of Pt IB are cast in terms that not only provide ‘a separate regime for fixing federal non-parole periods rather than relying on applied State or Territory legislation’, those provisions deal exhaustively with that subject. State and Territory legislation concerning the fixing of non-parole periods has no application to the sentencing of federal offenders.
(Footnotes omitted)
[11] (2010) 242 CLR 520.
[12] (2010) 242 CLR 520 at [51]-[52].
It follows that s 68 of the Judiciary Act does not pick up those provisions of State and Territory laws which govern the fixing of the terms and conditions of release on, and the consequences of breaching, parole.
For the same reasons ss 19AC and 20(1)(b) of the Crimes Act, which provide for release from prison on a recognizance release order instead of parole before the expiration of sentences of three years or less, are inconsistent with the parole provisions of the Sentencing Act which ordinarily require a non-parole period to be fixed for a head sentence of 12 months or more. Section 38A of the 1988 Sentencing Act, which allows for a partially suspended sentence of imprisonment, is also necessarily inconsistent with s 20 of the Crimes Act because in the case of a federal offence, ss 19AC and 20(1)(b) expressly and comprehensively deal with the same subject matter, and impose quite different constraints on the power to order early release.
It follows from those statements of principle that s 68 of the Judiciary Act picked up and applied s 33BB of the 1988 Sentencing Act only to the extent that it was not inconsistent with the Crimes Act. The Director’s submissions that the provisions of the Crimes Act were inconsistent with the making of the home detention order focused primarily on ss 19AB, 19AC and 20 of the Crimes Act, which provide for the release of a defendant on parole or a recognizance release order respectively before the expiry of the head sentence. However, it is s 20AB of the Crimes Act, which expressly empowers a court exercising federal jurisdiction to make orders it is empowered to make when sentencing for a State offence in a ‘corresponding case’, which is determinative of the question which arises in this case.
Before turning to the sections just mentioned, we observe that the power to impose a sentence of imprisonment or other penalty is the penalty provisions appended to, or otherwise connected with, the statutory prescription of a criminal offence. Division 3 of Part 1B of the Crimes Act is premised on the existence of that power.
On one possible construction of s 20(1)(b) of the Crimes Act, it is premised on the imposition of a sentence of imprisonment pursuant to the power conferred by the statutory provision creating the substantive offence and prescribing imprisonment as a penalty. On that construction only the recognizance release order is made pursuant to that subparagraph. The Director puts an alternative construction that both the sentence of imprisonment and the recognizance release order are made pursuant to s 20(1)(b) of the Crimes Act. The length of any term of imprisonment imposed pursuant to s 20(1)(b) of the Crimes Act could only be fixed by reference to the maximum penalty prescribed at the foot of the offence provision. There is no purpose therefore in implying that requirement in s 20(1)(b); it is much simpler to read s 20(1)(b) as operating on a sentence imposed in accordance with the power conferred by the offence provision pursuant to which sentences of imprisonment which are not subject to a recognizance release order are imposed. It follows that there is no reason to construe s 20(1)(b) of the Crimes Act as conferring an independent power to impose imprisonment.
As observed above, supplementary provisions of the Crimes Act provide comprehensively for the consequences of breaches of the terms and conditions of a release on parole or a recognizance release order. In particular, s 20A of the Crimes Act provides that on a proved failure to comply with a condition of a recognizance release order a court may take no action, impose a pecuniary penalty, extend the period of the recognizance, revoke the recognizance order or, pursuant to s 20A(5)(c)(i), order instead the imprisonment of the offender for that part of the sentence which had yet to be served when he or she was released. In addition, pursuant to s 20A(5)(c)(ic), the court may revoke the recognizance release order and may make an order under s 20AB of the Crimes Act.
It follows from the terms of subparagraphs (ic) and (i) of s 20A(5)(c) of the Crimes Act that a revocation of the recognizance release order does not, in itself, require the offender to serve the balance of his or her sentence. The offender will return to prison only if that order is made pursuant to s 20A(5)(c)(i) but not if an additional sentencing alternative is imposed pursuant to s 20AB of the Crimes Act (a s 20AB order). Importantly, s 20A(5)(c) of the Crimes Act does not allow for an additional sentencing alternative if the recognizance release order is left in place or extended.
Section 20AB of the Crimes Act relevantly provides:
20AB Additional sentencing alternatives
(1)A court may pass a sentence, or make an order, in respect of a person convicted before the court in a participating State or participating Territory of a federal offence, if:
(a)     subsection (1AA) applies to the sentence or order; and
(b)     under the law of the State or Territory, a court is empowered to pass such a sentence, or make such an order, in respect of a State or Territory offender in corresponding cases; and
(c)     the first-mentioned court is:
(i)empowered as mentioned in paragraph (b); or
(ii)a federal court.
(1AA)       This subsection applies to a sentence or order that is:
(a)     known as any of the following:
…
(iii)     a community correction order;
(iv)     a community custody order;
(v)    a community service order;
(vi)     a community work order;
(vii)    a drug or alcohol treatment order or rehabilitation order;
(viii)   a good behaviour order;
(ix)     an intensive correction order;
(x)    an intensive supervision order;
(xi)     a sentence of periodic detention or a periodic detention order;
(xii)    a sentence of weekend detention or a weekend detention order;
(xiii)   a work order; or
(b)     similar to a sentence or order to which paragraph (a) applies; or
(c)     prescribed for the purposes of this subsection.
…
(3)Where a sentence or order referred to in subsection (1) is passed or made under that subsection in respect of a person convicted in a State or Territory of a federal offence, the provisions of the laws of the State or Territory with respect to such a sentence or order that is passed or made under those laws shall, so far as those provisions are capable of application and are not inconsistent with the laws of the Commonwealth, apply, by virtue of this subsection, to and in relation to the sentence or order passed or made under subsection (1).…
(Underlining added)
On its face, there is no reason why an order could not be made pursuant to s 20AB of the Crimes Act in addition to, or in substitution for, the penalty expressly attached to a Commonwealth offence provision. For example, the Director accepts that a determinate sentence not subject to parole or a recognizance release order could be served on home detention. A community work order could also be imposed in addition to, or instead of, a fine. However, there is a real question, which we address below, whether recognizance release orders under s 20 of the Crimes Act and the imposition of s 20AB orders are intended to be mutually exclusive.
Home detention orders under the 1988 Sentencing Act were prescribed for the purposes of s 20AB(1AA) (see Reg 6, Item 6A Crimes Regulations 1900 (Cth); Acts Interpretation Act 1901 (Cth), s 10A).
It is convenient to state here in short form why the terms of s 20AB of the Crimes Act are determinative of the issue on this appeal. If s 20AB on its terms empowers courts sentencing federal offenders to order an additional sentencing alternative available under a law of a State or Territory, no question of inconsistency between a State or Territory law on the one hand, and a Commonwealth law on the other, can arise because it is s 20AB which expressly makes the alternative penalty available. If, on the other hand, s 20AB of the Crimes Act does not empower a court sentencing a federal offender to impose the alternative penalty because it is not available under the relevant State or Territory law in a corresponding case, neither s 68 nor s 80 of the Judiciary Act can pick up that law because it would be inconsistent with s 20AB of the Crimes Act to do so. This is because it is the manifest intention of s 20AB to cover the field of such sentencing alternatives. It follows that the question presented here is one of the coherent construction of the provisions of the Crimes Act and not as to inconsistency between its provisions and the laws of the States.
If a sentencing alternative is imposed and it is proved that the defendant has failed, without reasonable cause, to comply with it, s 20AC of the Crimes Act empowers a court to take no action, impose a pecuniary penalty or revoke the sentence and deal with the person for the subject offence as he or she might have been dealt with had the s 20AB order not been made. The last-mentioned power is important. As will shortly be seen, the power to resentence would appear anomalous, and would impose what may be considered to be double punishment, if a s 20AB Crimes Act order is imposed in addition to a sentence of imprisonment which is actually served in prison.
The Court of Criminal Appeal of Victoria in Atanackovic v R[13] held that a community corrections order, as provided for by ss 36-48 of the Sentencing Act 1991 (Vic), could not be imposed upon the release of a prisoner from prison on, or before, the expiration of a sentence of imprisonment imposed for a Commonwealth offence.
[13] (2015) 45 VR 179.
The conclusions of the Court were:[14]
[83]First, if the sentencing court forms the view that, having regard to the nature and circumstances of the offence and the antecedents of the offender, a term of imprisonment without parole or any other form of conditional release is appropriate then, obviously, a CCO cannot be made.
[84]Secondly, where the court considers that the appropriate sentencing disposition is a term of imprisonment inclusive of conditional release in the form of parole, it must fix a non-parole period in accordance with Pt 1B Div 4 of the Crimes Act 1914 (Cth). In such a case, a non-parole period cannot be fixed in accordance with the Sentencing Act.
[85]Thirdly, where the court decides to impose a term of imprisonment inclusive of conditional release in a form other than parole, that conditional release must be in the form of a recognizance release order and cannot be in the form of a CCO. This is because a recognizance release order is the only form of conditional release that Pt 1B Div 4 of the Crimes Act 1914 (Cth) provides as an alternative to parole where a federal offender is sentenced to a term of imprisonment. The reference to a recognizance release order in Pt 1B Div 4 incorporates the definition of that term in s 16, which in turn refers to s 20(1)(b) in Div 5. Section 20(1)(b) incorporates the conditions in s 20(1)(a). The cumulative effect of these provisions is that conditional release, other than in the form of parole, of an offender who has been sentenced to a term of imprisonment must be by way of recognizance release order that is subject to the conditions in s 20(1)(a).
[86]Although Hili did not refer to Pt 1B Div 5, it must logically follow from the court’s reasoning in that case that the conditions set out in s 20(1)(a), which apply to a recognizance release order by virtue of s 20(1)(b), must be treated as the only conditions that can be imposed upon a federal offender when released on such an order as part of a sentence that includes a term of imprisonment.
[87]It follows from the above discussion that the legislative scheme in the Crimes Act 1914 (Cth) leaves no room for conditional release in the form of a CCO for a federal offender who is sentenced to a term of imprisonment. This is because a CCO is subject to the conditions in Pt 3A Div 4 of the Sentencing Act rather than those in s 20(1)(a) of the Crimes Act 1914 (Cth).
(Footnote omitted)
[14] (2015) 45 VR 179 at [83]-[87].
The proposition in [83] is self-evident insofar as it is addressing the imposition of a community corrections order instead of a term of imprisonment which the Court has determined must be imposed. However, subject to what is said below about the sanctions which can be imposed on a breach of a s20AB order, it is not necessarily inconsistent with the imposition of a determinate sentence of imprisonment to make a community corrections order commencing at the end of that sentence. The Court in Atanackovic, without finally deciding the question, doubted the Director’s contention that the imposition of more than one penalty as part of a sentence imposed on conviction of an offence infringes the protection from double punishment.[15] We respectfully agree. Fines may be imposed in addition to imprisonment when both are prescribed as penalties at the foot of an offence provision. Community work orders may be made with respect to a defendant who has entered into a bond. Such an order could not have been made by the sentencing Judge in Atanackovic because pursuant to s 44 of the Sentencing Act 1991 (Vic) the head sentence must be two years or less if a community corrections order is to be made.
[15] (2015) 45 VR 179 at [89]-[93].

The proposition stated in [84] that a release on parole under the Crimes Act cannot be combined with a State non-parole period is uncontroversial.
The Director on this appeal relied substantially on the proposition stated in [85]. It can be accepted that it is only on a recognizance release order pursuant to which a Commonwealth offender can be released from prison before the expiration of a term of imprisonment of less than three years. However, the imposition of further penalties or obligations on the defendant’s release from prison, whether on a recognizance release order or on the expiry of the sentence, would not impinge on the conditions of release. The penalty order operates in the event of release but does not detract from the legal operation of s 20 of the Crimes Act. Nor does it trespass onto any field covered by s 20 because the terms and conditions of the recognizance are no more than that they determine what will breach the recognizance and subject the defendant to the sanctions provided for by s 20A of the Crimes Act. They do not exclude the imposition of other obligations which may be separately enforced. Again, subject to what is said below about the sanctions which might be imposed for a breach of a s 20AB order pursuant to s20A of the Crimes Act, there is no covering the field inconsistency between s 20 and s 44 of the Sentencing Act 1991 (Vic), which would prevent the latter provision being picked up by s 68 of the Judiciary Act 1901 (Cth). However, as shall be seen, on a proper construction of ss 20(1)(b) and s 20AB of the Crimes Act, a court sentencing a federal offender may not be empowered to make orders under both provisions.
The enforcement provisions governing breaches of orders made pursuant to ss 20 and 20AB of the Crimes Act suggest that the exercise of those powers may be mutually exclusive. Breaches of an alternative penalty order attract those sanctions provided by s 20AC of the Crimes Act, and breaches of a recognizance release order attract those sanctions prescribed by s 20A of the Crimes Act. As has been seen, one of the sanctions which may be imposed pursuant to s 20AC of the Crimes Act is the resentencing of the offender. It is unlikely that it was intended that a prisoner who had served the entirety or part of a term of imprisonment would be resentenced in the event of a subsequent breach of a s 20AB order. It may be that the Parliament intended to confer a power to make orders under both provisions on the same conviction expecting that the power to resentence would be used sparingly in those circumstances and that the court would take into account the time served in prison. Alternatively, there may be a negative implication precluding the resentencing power if imprisonment has been served. However, the preferable construction is that a court sentencing a federal offender is not empowered to make a s 20AB order if any period of actual imprisonment has been imposed.
The text and structure of the Crimes Act suggest that the following range of sentencing options (leaving aside fines) is available:
·a s 20(1)(a) recognizance
·a s 20AB order
·a home, weekend or periodic detention order pursuant to s 20AB of the Crimes Act
·imprisonment with or without a recognizance release order pursuant to s 20(1)(b)
·imprisonment with parole
·imprisonment without parole
Be that as it may, a community corrections order in a case like Atanackovic may only be imposed consistently with the terms of s 20AB of the Crimes Act itself. That section expressly empowers courts to make community corrections orders when sentencing for Commonwealth offences, but only when the order could be made ‘in a corresponding (State) case’. On its terms s 44 of the Sentencing Act 1991 (Vic) requires a community corrections order to commence either on the release of the offender from imprisonment or, if the offender is released on parole, upon completion of the parole period. Section 44 of the Sentencing Act 1991 (Vic) makes no provision for the commencement of a community corrections order at the expiration of a recognizance release order made pursuant to s 20(1)(b) of the Crimes Act. It follows that for a sentence corresponding to that imposed in Atanackovic, which allowed for early release, not on parole but on a recognizance release order, s 44 of the Sentencing Act 1991 (Vic) could have no application.
So too with the application of home detention orders in this case. The State sentencing disposition corresponding to a recognizance release order pursuant to s 20(1)(b) of the Crimes Act is a partially suspended sentence. However, s 33BB(1)(b) of the 1988 Sentencing Act precluded the making of a home detention order for that part of a partially suspended sentence which was to be served before the release on bond. Pursuant to s 33BB of the 1988 Sentencing Act, a home detention order could only be made for the whole of the term of imprisonment, or if a non-parole period was fixed, for that period.
A non-parole period does not correspond with that part of a sentence which must be served before release on a recognizance release order. Parole continues only until the end of the determinate sentence whereas the period of a recognizance release order under the Crimes Act, or a bond pursuant to which a sentence is suspended under the 1988 Sentencing Act, may extend well beyond the expiry of the sentence. The difference is more than a matter of mere form. On a breach of parole, no order other than that the sentence not yet served at the time of the breach be served can be made. A court dealing with a breach of a condition of a suspended sentence under the 1988 Sentencing Act, or recognizance release order, has much wider powers.
On its terms, therefore, s 33BB(1)(b) of the 1988 Sentencing Act did not allow the making of a home detention order in circumstances which correspond to a recognizance release order. Therefore s 20AB of the Crimes Act did not empower the Judge to make a home detention order. Neither s 68 nor s 80 of the Judiciary Act could pick up s 33BB of the 1988 Sentencing Act in the circumstances of this case because to do so would be inconsistent with the limited availability of home detention orders under s 20AB of the Crimes Act.
It follows that the sentence imposed by the Judge was not authorised by law. Allowing a sentence of this kind, which is not authorised by law, is fraught. Difficult questions may arise. Can a breach lawfully be enforced? Is the defendant lawfully detained whilst on home detention? It is undesirable to allow an extant, but irregular, sentence to stand in the face of such uncertainty.
Conclusion
We grant permission to appeal for the purposes of ensuring that the order complies with the provisions of the Crimes Act. On the resentencing of the appellant we record that the Director does not contend that the sentence was manifestly inadequate.
We resentence the respondent in a way which best gives effect, to the extent permitted by the Crimes Act, to the disposition which the Judge thought best addressed the circumstances of the offence and the respondent. The respondent has been detained on home detention conditions since 17 April 2018, a period of nine months. We order that the respondent be sentenced to imprisonment for 11 months commencing on 17 January 2019 but that he be released forthwith on a recognizance release order for a period of three years pursuant to s 20(1)(b) of the Crimes Act. The condition of the recognizance will be:
1That the respondent be of good behaviour during the term of the Recognizance.
2That the respondent be under the supervision of a Probation Officer assigned to him for a period of two years and obey the lawful directions given to him by the Probation Officer to whom he is assigned for the purpose of supervision.
3That the respondent not maintain a Snapchat or Instagram account.
4That the respondent inform his Probation Officer of any emails or any social media accounts maintained by him and provide all usernames and passwords relating to those accounts so that they may be monitored.
5That the respondent present for inspection and examination by an expert any electronic device requested by his Probation Officer and provide any access codes relating to those devices.
6That the respondent refrain from travelling interstate or overseas for a period of two years without the written permission of his Probation Officer.
7That the respondent attend and complete any assessment, counselling, treatment and therapeutic programs as may be deemed appropriate to effectively case manage his individual needs as directed by the Probation Officer to whom he is assigned.
8That the respondent attend for further sexual offending assessment and treatment at either Owenia House or on an individual basis with a suitably qualified and experienced psychologist, as directed by his Probation Officer to whom he is assigned.
9That the respondent not be or remain within the vicinity of any kindergarten or preschool in Australia.