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Court of Criminal Appeal 16 April 2021

Chalhoub v R

[2021] NSWCCA 69

Drugs
SENTENCING PENALTIES INTENSIVE CORRECTION ORDERS NO ERROR SHOWN SENTENCING SENTENCING PROCEDURE AGREED FACTS

Citation: Chalhoub v R [2021] NSWCCA 69
Court: Court of Criminal Appeal, NSW
Date: 16 April 2021
Judge(s): Payne JA; Bellew J; Button J (all agreeing)

Background

The appellant pleaded guilty in the Sydney District Court to two counts of manufacturing a prohibited drug, specifically 294.6 grams of cannabis oil and 278 grams of cannabis resin, contrary to s 24(1) of the Drug Misuse and Trafficking Act 1985 (NSW). A further offence of dealing with property reasonably suspected of being proceeds of crime (approximately $21,935) was taken into account on a Form 1. The maximum penalty for each manufacturing offence was 15 years imprisonment.

Judge Weinstein SC imposed an aggregate term of 1 year and 6 months imprisonment with an aggregate non-parole period of 9 months, commencing 18 October 2020. The sentencing judge declined to make an intensive correction order (ICO), concluding that full-time custody was the more appropriate disposition.

The appellant sought leave to appeal against sentence on two grounds. The first concerned the sentencing judge's assessment of whether an ICO was appropriate. The second concerned an alleged misstatement of the agreed factual basis of the plea in the sentencing remarks.

  • Whether the sentencing judge failed to undertake the assessment mandated by s 66(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) when determining whether an ICO should be imposed, or failed adequately to explain that assessment in his reasons.
  • Whether the sentencing judge erred by misstating the agreed facts when sentencing the appellant, thereby sentencing him on a factually incorrect basis.
  • If error was established on either ground, whether a lesser sentence was warranted in law.

Decision

Ground 1: ICO assessment under s 66(2)

The Court found no error in the sentencing judge's approach to the ICO question. Under s 66 of the Crimes (Sentencing Procedure) Act 1999, community safety is the paramount consideration when a court determines whether to impose an ICO, and the sentencing judge is required to assess whether community safety is best promoted by that order. Applying the three-step process confirmed in R v Fangaloka [2019] NSWCCA 173, the sentencing judge had expressly considered community safety, undertook the s 66(2) assessment, and gave reasons for concluding that an ICO was not appropriate. The description of the appellant's insight as "still evolving" was a finding open to his Honour, and the conclusion that full-time custody was more likely to address the risk of reoffending was not attended by error.

Ground 2: Misstatement of agreed facts

The Crown accepted that the sentencing judge's remarks on sentence misstated the factual basis of the appellant's plea. This concession established error, and the Court of Criminal Appeal was therefore required to exercise the sentencing discretion afresh rather than simply review the original exercise of that discretion. The error had arisen in the context of a joint sentence hearing with a co-offender, where facts agreed solely for the purposes of the co-offender's proceedings had been misapplied to the appellant.

Resentencing

Despite the established error, the Court concluded that no lesser sentence was warranted in law within the meaning of s 6(3) of the Criminal Appeal Act 1912 (NSW). The objective seriousness of the offending, the need for deterrence and denunciation, and the appellant's still-evolving insight all supported the original sentence. The appeal was therefore dismissed.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge considering an ICO must follow a three-step process under R v Fangaloka: determine that no penalty other than imprisonment is appropriate, fix the length of the term, and then determine whether the sentence should be served by way of an ICO with community safety as the paramount consideration.
  • No error arises from declining to impose an ICO where the sentencing judge expressly addresses community safety, undertakes the s 66(2) assessment, and gives reasons for concluding that full-time custody better addresses reoffending risk, particularly where the offender's insight into their offending is assessed as still developing.
  • Where a sentencing judge misstates the agreed factual basis of a plea in the sentencing remarks, error is established and the appellate court must exercise the sentencing discretion afresh, applying Kentwell v The Queen (2014) 252 CLR 601.
  • Establishing a factual error in the sentencing remarks does not automatically result in a reduction of sentence. Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal will dismiss the appeal if, having resentenced afresh, it concludes no lesser sentence is warranted in law.
  • Care is required where co-offenders are sentenced simultaneously: agreed facts tendered exclusively for the purposes of one offender's proceedings may not form the factual basis for sentencing the other.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 193C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 66
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)
- Drug Misuse and Trafficking Act 1985 (NSW), s 24(1), Sch 1

Cases
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Casella v R [2019] NSWCCA 201
- DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
- Karout v R [2019] NSWCCA 253
- Kember v R [2020] NSWCCA 152
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- R v Fangaloka [2019] NSWCCA 173
- R v Pullen [2018] NSWCCA 264; (2018) 275 A Crim R 509
- Wany v DPP [2020] NSWCA 318