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12
Court of Criminal Appeal 3 September 2021

Mourtada v R

[2021] NSWCCA 211

Also reported as (2021) 290 A Crim R 514
Fraud & dishonesty
SENTENCING APPEAL AGAINST SENTENCE AGGREGATE SENTENCE INTENSIVE CORRECTION ORDER AVAILABILITY FOR SENTENCE UNDER 3 YEARS MANDATORY CONSIDERATIONS

Citation: Mourtada v R [2021] NSWCCA 211
Court: NSW Court of Criminal Appeal
Date: 3 September 2021
Judges: Basten JA at [1]; Adamson J at [34]; Campbell J at [40]

Background

The appellant was sentenced in August 2020 for two federal offences involving the importation of tobacco products to evade excise duty and GST. The first offence involved 10 consignments of molasses tobacco weighing 365 kg, with duty avoided of approximately $213,000, carried out with the assistance of US military personnel working in the American postal system in Australia. The second offence was an attempted importation involving an agreement with three others, originally charged as a conspiracy.

The sentencing process was complicated by errors in the original recognizance release orders, which led the matter to return before the sentencing judge in February 2021. The judge ultimately imposed an aggregate sentence of 21 months and 3 weeks, with a recognizance release order to take effect after 15 months.

On appeal to the Court of Criminal Appeal, the appellant challenged the sentencing judge's failure to direct that the sentence be served by way of an intensive correction order (ICO), an alternative to full-time custody that is served in the community under supervision.

  • Whether the sentencing judge was required to consider making an ICO under s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW), and whether that consideration took place.
  • Whether a State ICO is available as a sentencing option for a federal offender, given that Commonwealth sentencing is primarily governed by Part 1B of the Crimes Act 1914 (Cth), with State laws "picked up" only to the extent permitted by federal law.
  • Whether the sentencing judge erred by relying on general and specific deterrence as a reason to decline an ICO.
  • Whether the disparity between the appellant's sentence and those of his co-offenders gave rise to a legitimate grievance warranting appellate intervention.

Decision

Availability of ICOs for federal offenders. The Court examined the interplay between Commonwealth and State sentencing regimes. Under Hili v The Queen (2010) 242 CLR 520, State sentencing laws only operate in federal jurisdiction to the extent they are "picked up" by federal law, primarily through s 68 of the Judiciary Act 1903 (Cth) and s 20AB of the Crimes Act 1914 (Cth). The Court confirmed that ICOs, as a State sentencing alternative, are available to federal offenders through that mechanism, provided they are consistent with the Commonwealth framework and the aggregate sentence does not exceed the relevant thresholds under Part 5 of the State Act.

Consideration of s 66 mandatory matters. Section 66 of the Crimes (Sentencing Procedure) Act requires a court to consider specific matters, including community safety, before deciding whether to make an ICO. The appellant argued the sentencing judge failed to engage with these mandatory considerations and instead focused impermissibly on deterrence alone. The Court found that, although the judge did not refer to s 66 expressly, he had been directly asked about ICO considerations by counsel and had responded affirmatively, indicating he had taken the required matters into account. The Court drew on its earlier decision in Blanch to confirm that express reference to the provision is not necessary, provided the substance of the mandatory considerations is addressed.

Deterrence and ICOs. The Court acknowledged the argument that general and specific deterrence, by themselves, cannot be the sole basis for refusing an ICO if all the mandatory matters under s 66 have otherwise been satisfied. However, on the facts, the Court was not persuaded that the judge had acted on deterrence alone, finding that his reasons, read as a whole, reflected proper engagement with the relevant considerations.

Sentencing disparity. The appellant argued his sentence was unjustly disparate compared to those of his co-offenders. The Court rejected this ground, noting that the co-offenders were involved in materially different offences and played different roles. The differences in sentence were explained by those distinctions rather than by any error in the appellant's sentencing.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Under s 20AB of the Crimes Act 1914 (Cth), State sentencing alternatives such as ICOs are available for federal offenders, but only to the extent they are consistent with Commonwealth sentencing provisions and are properly "picked up" by federal law.
  • A sentencing judge considering whether to make an ICO must address the mandatory matters set out in s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW), including community safety, but is not required to cite the section expressly in reasons, provided the substance of each consideration is addressed.
  • Reliance solely on general and specific deterrence as a reason to decline an ICO raises a question of legal error, though on the facts here the Court was satisfied the judge had not acted on that basis alone.
  • Sentencing disparity between co-offenders does not establish error where the co-offenders faced different charges and played materially different roles in the offending.
  • The Court of Criminal Appeal confirmed, consistent with Hili v The Queen, that State and Territory sentencing laws do not apply of their own force to federal offenders; any application depends on a federal law that expressly or impliedly "picks up" the State provision.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 7, 44, 66, 70; Pt 2 Div 2, Pt 5
- Crimes Act 1914 (Cth), ss 19AC, 19AF, 19AH, 20, 20A, 20AB; Pt 1B, Divs 4 and 5
- Judiciary Act 1903 (Cth), s 68
- Crimes Legislation Amendment Act (No. 2) 1989 (Cth), s 6

Cases
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
- R v Fangaloka [2019] NSWCCA 173
- Casella v R [2019] NSWCCA 201
- Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40
- Selimoski v Picknoll (Supreme Court of Western Australia, unrep, 9 October 1992)