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Court of Criminal Appeal 1 December 2021

Al Am Ali v R

[2021] NSWCCA 281

Fraud & dishonesty
CRIME APPEALS APPEAL AGAINST SENTENCE ONE GROUND OF APPEAL TIME IMPRISONMENT GROUND OF APPEAL MADE OUT

Citation: Al Am Ali v R [2021] NSWCCA 281
Court: Court of Criminal Appeal, NSW
Date: 1 December 2021
Judges: Beech-Jones CJ at CL, Davies J, Wilson J

Background

The applicant pleaded guilty in the District Court to possessing 1,974 kilograms of molasses tobacco, knowing the goods had been imported with intent to defraud the revenue, contrary to s 233BABAD(2) of the Customs Act 1901 (Cth). The offence arose from a coordinated law enforcement investigation into a Sydney-based organised crime syndicate that smuggled and distributed large quantities of tobacco product over a period spanning mid-2018 to early 2019. The total duty evaded in connection with the applicant's conduct was approximately $1.97 million.

The applicant was sentenced by Judge North in the District Court on 9 April 2021 to 24 months' imprisonment commencing 11 February 2021, with a direction that he be released on a recognizance after 12 months, on 10 February 2022, to be of good behaviour for the balance of the term. Three co-offenders were sentenced at the same time.

The applicant sought leave to appeal against that sentence on one ground: that the sentencing judge failed to engage with a submission by defence counsel that an Intensive Correction Order (ICO) should be considered instead of full-time imprisonment.

  • Whether the sentencing judge erred by failing to have regard to the requirements of s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which obliges a court to consider whether a sentence of imprisonment should be served by way of an ICO before imposing full-time custody.
  • Whether, on resentencing, the sentence of imprisonment should be altered.
  • Whether, on resentencing, the sentence should be served in the community by way of an ICO.

Decision

The Court of Criminal Appeal granted leave to appeal and found that the sentencing judge had failed to engage with defence counsel's submission that an ICO warranted consideration. This constituted an error within the meaning of the ground of appeal, and the ground was made out.

Notwithstanding that error, the Court proceeded to resentence the applicant and found that a sentence of imprisonment remained appropriate. The applicant had played a significant role in organised criminal activity, involving himself over multiple occasions to supplement his income and fund a drug habit. No sentence other than imprisonment was considered adequate given the seriousness of the conduct.

The Court then turned to whether the sentence of imprisonment should be served by way of an ICO. Davies J identified a combination of factors pointing against that course. The applicant was due to be released on a recognizance in less than three months from the time of the appeal hearing. Any ICO could not extend beyond the existing sentence end date, leaving only approximately 12 months of potential operation. Additionally, a fresh assessment report from a Community Corrections officer would be required before an ICO could be finalised, a process taking at minimum six weeks, further compressing the available period. Critically, in circumstances where the applicant was about to be released on a recognizance, imposing an ICO would constitute a more severe punishment than what had already been imposed.

Beech-Jones CJ at CL added that his conclusion that no lesser sentence was warranted was reached regardless of whether the applicable sentencing objectives were those under s 16A of the Crimes Act 1914 (Cth) or s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The appeal was dismissed.

Orders Made

• The sentence of imprisonment for two years imposed by the sentencing judge is not to be altered
• The sentence is not to be served by way of an Intensive Correction Order
• The applicant's release on recognizance on 10 February 2022 stands

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge is required to engage substantively with a defence submission that an ICO should be considered, and failure to do so constitutes error under s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • In resentencing, the Court found that the practical circumstances of an applicant's sentence can make an ICO inappropriate even where the original sentencing error is established: proximity to release on recognizance and the compressed remaining term were determinative here.
  • Under s 69 of the Crimes (Sentencing Procedure) Act 1999 (NSW), an assessment report from a Community Corrections officer is required before an ICO can be imposed, and the time needed to obtain such a report is a relevant practical consideration on resentencing.
  • An ICO imposed on resentencing cannot extend beyond the original sentence's expiry date, which may limit its utility where little of the sentence remains to run.
  • A significant role in organised criminal activity involving large-scale duty evasion on smuggled tobacco supported a finding that no sentence other than full-time imprisonment was appropriate at first instance.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233BABAD
- Crimes Act 1914 (Cth), s 16A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 66, 69
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Abbas Elzein v R; Ahmad Elzein v R; Bilal Doughan v R [2021] NSWCCA 246
- Blanch v R [2019] NSWCCA 304
- Mandranis v R [2021] NSWCCA 97
- Mourtada v R [2021] NSWCCA 211
- R v Edelbi [2021] NSWCCA 122
- R v Pullen [2018] NSWCCA 264
- Wany v DPP [2020] NSWCA 318