AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
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: Court of Criminal Appeal
Date: 03 September 2021
Judge(s): Basten JA at [1]; Adamson J at [34]; Campbell J at [40]

Background

The applicant was convicted of two Commonwealth offences involving the importation of tobacco products without payment of excise duty and GST. The first offence involved 10 consignments of molasses tobacco totalling 365 kg, smuggled with the assistance of US military servicemen working in the American postal system, with duty avoided exceeding $213,000. The second offence was an attempt to import tobacco products with intent to defraud the revenue, arising from a conspiracy hatched at a local restaurant.

Following a sentencing proceeding that spanned several days across late 2019 and a judgment delivered over three days in August 2020, the applicant was initially given separate sentences with a recognizance release order. That order did not clearly apply to both sentences as required by section 19AC of the Crimes Act 1914 (Cth). On the applicant's own motion, the matter returned before the sentencing judge.

The judge set aside both sentences and resentenced the applicant to an aggregate term of 21 months and 3 weeks, with a recognizance release order to take effect after 15 months and requiring 9 months of good behaviour. The applicant then appealed, arguing that the sentencing judge should have directed that the whole sentence be served in the community by way of an intensive correction order (ICO).

Legal Issues

  • Whether an ICO is available as a sentencing option for a federal offence, and if so, whether the procedural requirements of section 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) are also picked up
  • Whether the sentencing judge failed to consider the mandatory factors under section 66 of the Sentencing Procedure Act when declining to make an ICO
  • Whether the sentencing judge's reasons were inadequate for failing to address section 66 in express terms
  • Whether the sentences imposed resulted in an unjustifiable disparity with those of co-offenders

Decision

ICO Availability in Federal Jurisdiction

An ICO is explicitly available as a sentencing alternative for federal offenders by virtue of section 20AB(1AA)(a)(ix) of the Crimes Act 1914 (Cth), which names intensive correction orders among the State sentencing options that may be picked up in federal jurisdiction (at [16]). The Court accepted, without challenge from the Director, that in picking up the power to impose an ICO, section 20AB also picks up the procedural requirements governing that power under State law, including section 66 of the Sentencing Procedure Act (at [20]).

Grounds 1 and 2: Failure to Apply Section 66 and Adequacy of Reasons

The Court found no error on the part of the sentencing judge. The judge expressly acknowledged the possibility of an ICO during the sentencing proceedings and explained, in an exchange with counsel, that the objective seriousness of the offending required full-time custody for the purposes of both general and specific deterrence (at [19]-[22]). The Court held that having regard to specific and general deterrence was not impermissible "double-counting" when assessing whether an ICO was appropriate. Under section 66(3), all sentencing principles remain relevant, not just community safety (at [26]).

Adamson J confirmed that while the considerations in section 66 are mandatory in the sense described in Peko-Wallsend, a sentencing judge is not required to address each one individually in the reasons as though ticking items off a list (at [37]-[38]). It was sufficient that the reasons addressed the parties' submissions and demonstrated correct application of the law. Read as a whole, the sentencing judgment showed the judge was aware of and applied section 66, granting ICOs to some co-offenders but not to the applicant (at [38]). The reformulated ground of inadequate reasons fared no better, as the substantive matters raised by counsel were addressed in substance (at [28]).

Ground 3: Parity

Leave to appeal on the parity ground was refused. The applicant's aggregate sentence covered two distinct offences, making direct comparison with co-offenders difficult. The applicant was identified as the principal who exploited the trust breaches of the co-offenders, and the sentencing judge's evaluative judgments about relative culpability and personal circumstances disclosed no appealable error (at [29]-[32]).

Orders Made

  • Leave to appeal granted on grounds 1 and 2
  • Leave to appeal refused on ground 3
  • Appeal dismissed

Key Takeaways

  • An intensive correction order is available as a sentencing option for federal offenders in NSW courts, because section 20AB(1AA)(a)(ix) of the Crimes Act 1914 (Cth) expressly picks up that alternative; and, without challenge, the Court accepted that the procedural requirements of section 66 of the Sentencing Procedure Act are also picked up (at [16], [20]).

  • Section 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) creates mandatory relevant considerations, but the Court of Criminal Appeal confirmed that a sentencing judge need not address each consideration expressly in the reasons, provided the reasons show the submissions were dealt with and the law was correctly applied (at [37]-[38]).

  • General and specific deterrence are legitimate considerations when a sentencing court assesses whether an ICO is appropriate. Relying on those factors in that assessment does not constitute impermissible double-counting, because section 66(3) preserves the relevance of all sentencing principles, not only community safety (at [26]).

  • Under section 66(2), "community safety" as the paramount consideration requires an assessment of whether full-time custody or an ICO is more likely to address the offender's risk of reoffending. The purpose of section 66 is to ensure courts do not assume full-time detention is always the better answer, not to mandate a preference for community-based orders (at [25]).

  • A parity challenge to an aggregate sentence covering multiple offences faces a structural difficulty: comparing the aggregate with co-offenders' sentences for individual offences may be misleading where the applicant's role and the offences involved differ materially (at [29]-[32]).

Legislation and Cases Referenced

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

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