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Court of Criminal Appeal 16 July 2021

Mustafa v R

[2021] NSWCCA 164

Assault & violenceTheft & property
CRIME APPEAL AGAINST SENTENCE APPEAL ALLOWED AGGREGATE SENTENCE IMPOSED ICO ORDERED.

Citation: Mustafa v R [2021] NSWCCA 164
Court: Court of Criminal Appeal, NSW
Date: 16 July 2021
Judges: McCallum JA; Rothman J; Ierace J

Background

The appellant pleaded guilty in the District Court to two offences: robbery in company (maximum penalty 20 years' imprisonment) and common assault (maximum penalty 2 years' imprisonment). The sentencing judge imposed 3 years' imprisonment for the robbery and 3 months for the assault, ordered to run fully concurrently from 1 December 2020, producing an effective sentence of 3 years with a non-parole period of 12 months.

The factual background involved a group of males, including the appellant, approaching a cognitively impaired 28-year-old man at a park in Liverpool at night, taking his mobile phone, iPod, and other items, threatening him, and later driving him to his home. The assault charge arose from conduct that the sentencing judge accepted was wholly encompassed within the criminality of the robbery in company.

Before sentence, the appellant had sought an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). His purpose was to become eligible for an Intensive Correction Order (ICO), which is only available where an aggregate sentence of 3 years or less is imposed. The sentencing judge declined to impose an aggregate sentence, describing it as "quite inappropriate" given the sentences were to run concurrently. The appellant challenged that refusal on appeal.

  • Whether the sentencing judge erred by concluding it was "quite inappropriate" to impose an aggregate sentence under s 53A where the individual sentences were to be served concurrently rather than cumulatively
  • Whether the sentencing judge denied the appellant procedural fairness by failing to indicate to defence counsel that he did not intend to impose an aggregate sentence
  • Whether the sentencing judge erred by failing to give adequate reasons for declining to impose an aggregate sentence under s 53A
  • Whether, had an aggregate sentence been available, an ICO should have been ordered

Decision

The Court of Criminal Appeal allowed the appeal on Grounds 1 and 3, finding the sentencing judge fell into error by treating an aggregate sentence as "quite inappropriate" simply because the individual sentences were concurrent. The Court held that s 53A of the Crimes (Sentencing Procedure) Act is not confined to cases where sentences are accumulated. An aggregate sentence remains available and may be appropriate where sentences run concurrently, including where the court wishes to provide transparency about the individual components of an overall sentence.

Rothman J found that the sentencing judge had the option of setting indicative sentences of 3 months and 3 years and imposing an aggregate sentence of 3 years. That approach would have achieved the transparency the sentencing judge apparently sought, while also preserving the appellant's eligibility for an ICO. By misreading the scope of s 53A, the sentencing judge precluded consideration of an ICO entirely.

The Court also found the sentencing judge had not given adequate reasons for declining to use s 53A, which separately constituted error. On procedural fairness (Ground 2), the Court found it unnecessary to decide the ground in light of its conclusions on Grounds 1 and 3, though it noted serious concerns about whether the appellant had a proper opportunity to address the sentencing structure that was ultimately adopted.

Turning to the fresh sentencing exercise, the Court imposed an aggregate sentence and, having considered all relevant factors including the appellant's youth, guilty plea, limited criminal history, remorse, and the availability of a Sentencing Assessment Report recommending an ICO, ordered that the sentence be served by way of an ICO. The Court was satisfied that, notwithstanding the gravity of the offending, the purposes of sentencing could be met in this case through an ICO.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) is not limited to cases involving cumulative sentences. The Court of Criminal Appeal confirmed that aggregate sentences are available and may be appropriate even where individual component sentences are to be served concurrently.

  • A sentencing judge who declines to impose an aggregate sentence must give adequate reasons for that decision. The failure to do so constitutes a distinct and reviewable error on appeal.

  • Where a sentencing judge's error in declining to impose an aggregate sentence directly forecloses eligibility for an ICO, the appellate court will intervene and conduct a fresh sentencing exercise, including consideration of an ICO.

  • The use of indicative sentences under the aggregate sentencing regime provides a transparent mechanism for identifying the weight given to each offence, including where one offence's criminality is wholly encompassed within another. This transparency can be achieved without imposing separate concurrent sentences.

  • An ICO may be ordered even for serious offences such as robbery in company, where an offender's subjective circumstances (including youth, a plea of guilty, remorse, and limited prior offending) are sufficiently compelling and a Sentencing Assessment Report supports community-based supervision.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 5, 7(1), 25D, 53A, 68(1)-(3), 73A

Cases:
- Abel v R [2020] NSWCCA 82
- Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38
- Barbaro v The Queen (2014) 253 CLR 58
- BP v R (2010) 201 A Crim R 379
- Douar v R [2005] NSWCCA 455
- GAS v The Queen (2004) 217 CLR 198
- House v The King (1936) 55 CLR 499
- Kutchera v Regina [2007] NSWCCA 121
- Mandranis v The Queen [2021] NSWCCA 97
- Ng v R (2011) 214 A Crim R 191
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
- R v Faraj [2020] NSWDC 171
- R v Fangaloka [2019] NSWCCA 173
- R v Henry (1999) 46 NSWLR 346
- R v Pullen (2018) 275 A Crim R 509
- R v Stanley [2003] NSWCCA 233
- RCB v The Honourable Justice Forrest (2012) 247 CLR 304
- Re Building Workers' Industrial Union; Ex parte Gallagher (1988) 62 ALJR 81
- Sullivan v Department of Transport (1978) 20 ALR 323