Published by Geoff Harrison | 6 December 2024
As stated by Johnson J in Tiknius v R [2011] NSWCCA 215 at [31]:
The concept of duress is well known to the common law. In R v Z [2005] UKHL 22; (2005) 2 AC 467 at 489 [17], Lord Bingham of Cornhill said:
"The commonsense starting point of the common law is that adults of sound mind are ordinarily to be held responsible for the crimes which they commit. To this general principle, there has, since the fourteenth century, been a recognised but limited exception in favour of those who commit crimes because they are forced or compelled to do so against their will by the threats of another. Such persons are said, in the language of the criminal law, to act as they do because they are subject to duress."
Where an offender commits a crime whilst acting under duress which falls short of a complete defence to the charge, that duress is capable of being a mitigating factor on penalty. The onus lies upon the offender to establish the facts which are said to operate to mitigate penalty: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at 281 [26] - [27].
In the context of offences against New South Wales law, a nominated mitigating factor arises where "the offender was acting under duress": s.21A(3)(d) Crimes (Sentencing Procedure) Act 1999; R v Razzak [2006] NSWSC 1366; 166 A Crim R 132 at 147 [63]- [64]; Le v R [2007] NSWCCA 330 at [6]. With respect to State offences, the concept of duress is governed by common law principles, and both subjective and objective elements are involved: R v Abusafiah (1991) 24 NSWLR 531; R v Razzak at 140-141 [25]-[30]; R v Nguyen [2008] NSWCCA 22; 181 A Crim R 72 at 79-81 [33]- [40].
With respect to Commonwealth offences, the test for duress is now contained in s.10.2 Criminal Code (Cth), which contains both subjective and objective features. Section 10.2 provides:
"10.2 Duress
(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence under duress.
(2) A person carries out conduct under duress if and only if he or she reasonably believes that:
(a) a threat has been made that will be carried out unless an offence is committed; and
(b) there is no reasonable way that the threat can be rendered ineffective; and
(c) the conduct is a reasonable response to the threat.
(3) This section does not apply if the threat is made by or on behalf of a person with whom the person under duress is voluntarily associating for the purpose of carrying out conduct of the kind actually carried out."
The construction of s.10.2 was considered by the Court of Criminal Appeal in R v Oblach [2005] NSWCCA 440; 65 NSWLR 75, where it was observed (at [70]) that threats to an offender falling short of duress could be a relevant factor on sentence.
There is no reference in s.16A Crimes Act 1914 (Cth) to duress as a factor to be taken into account on sentence for a Commonwealth offence. However, a Court must impose a sentence that is of a severity appropriate in all the circumstances of the offence: s.16A(1). The Court must take into account the nature and circumstances of the offence (s.16A(2)(a)) and the need to ensure that the person is adequately punished for the offence (s.16A(k)).
The relevance of non-exculpatory duress in mitigation of sentence may arise after trial and conviction, where duress has been a trial issue. In that case, it will be necessary for the sentencing Judge to make factual findings as part of an assessment of whether this factor assists the offender on sentence and, if so, to what extent. Of course, the fact that the jury has rejected the defence of duress does not mean that threats or other conduct falling short of the defence, cannot be taken into account on sentence: R v Oblach at [69] - [70].
Other Sources:
Cases:
R v Ersegovic [2024] NSWDC 596 at [39] - [42]
Tiknius v R [2011] NSWCCA 215 at [30] - [54].
Taiapa v The Queen [2009] HCA 53 at [28]
R v Liu [2005] NSWCCA 378 at [20].
El-Chaar v Regina [2007] NSWCCA 16 at [27]
Oblach v R [2005] NSWCCA 440 at [70].
Extracted Legislation:
CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 21A
Aggravating, mitigating and other factors in sentencing
...
(3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows--
...
(d) the offender was acting under duress,
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