Commonwealth offences in Queensland

The charges we see most

Other federal regimes generate charges too, including the Migration Act 1958 (Cth), the Taxation Administration Act 1953 (Cth) and the Corporations Act 2001 (Cth).

What is different about a federal prosecution

• The prosecutor. The CDPP, not Queensland Police Prosecutions or the state Office of the Director of Public Prosecutions. Negotiations are conducted under the Prosecution Policy of the Commonwealth, which is a published document and is worth reading.
• The investigator. Australian Federal Police, Services Australia, the Australian Taxation Office, ASIC or the Australian Border Force rather than the Queensland Police Service.
• The court. Still a Queensland Magistrates, District or Supreme Court, applying federal sentencing law.
• Sentencing. Part IB of the Crimes Act 1914 (Cth) applies, not the Penalties and Sentences Act 1992 (Qld). The factors are in section 16A.
• Fault elements. Chapter 2 of the Criminal Code (Cth) codifies intention, knowledge, recklessness and negligence, and specifies which applies to each physical element. Federal charges are frequently defended on the fault element rather than the conduct.

Federal sentencing, and the equivalent of no conviction

Section 16A of the Crimes Act 1914 (Cth) requires a sentence of a severity appropriate in all the circumstances and lists the matters the court must take into account, including the nature and circumstances of the offence, contrition, cooperation with law enforcement, the effect on the family, and the deterrent effect.

The Commonwealth equivalent of not recording a conviction is section 19B, which allows a court to dismiss the charge, or discharge the person on conditions, without proceeding to conviction. It is a genuine and underused option, particularly for small social security overpayment matters.

Where imprisonment is imposed, a recognizance release order under section 20(1)(b) is the federal counterpart of parole for shorter sentences, and it is often the thing worth arguing about.

Repayment matters. In Centrelink and tax matters, evidence that the debt has been repaid or that a repayment arrangement is running is the strongest mitigation available, and Services Australia debts continue to be recovered separately from any criminal penalty.

Carriage service offences

Section 474.17 is now one of the most frequently prosecuted federal offences in Australia. It applies where a person uses a carriage service, which includes phone calls, SMS, email and social media, in a way that reasonable persons would regard as menacing, harassing or offensive. The maximum is 5 years.

It commonly appears alongside Queensland domestic violence charges, because messages sent after a relationship ends are captured. The test is objective. It does not matter that you did not intend to menace anyone if reasonable persons would regard the messages that way, though you must have been reckless as to that character.

Practical advice that people ignore and then regret: stop sending messages, do not delete anything, and do not create a new account to keep contacting the person. Deletion is treated as consciousness of guilt.