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Court of Criminal Appeal 28 February 2022

Khalil v R

[2022] NSWCCA 36

Fraud & dishonesty
CRIME APPEALS APPEAL AGAINST SENTENCE WHERE SENTENCING JUDGE IMPOSED A FULL TIME CUSTODIAL SENTENCE TIME IMPRISONMENT

Citation: Khalil v R [2022] NSWCCA 36
Court: NSW Court of Criminal Appeal
Date: 28 February 2022
Judges: Price J, Hamill J, Ierace J

Background

The applicant pleaded guilty in the District Court to two offences involving the illegal importation and distribution of tobacco products, committed as part of a Sydney-based organised crime syndicate investigated by the NSW Joint Counter Terrorism Team from late 2017. The first offence concerned aiding and abetting the possession of 210kg of molasses tobacco on 18 July 2018. The second concerned conveying approximately 9.5 million cigarettes that had been illegally imported, on 30 April 2019. The total duty evaded across the syndicate's operations exceeded $16 million.

The sentencing judge in the District Court imposed concurrent sentences totalling two years' imprisonment, with the applicant to be released after serving 12 months pursuant to a recognisance release order (RRO). Prior to sentencing, the applicant had submitted that an intensive correction order (ICO), which allows an offender to serve a sentence in the community under strict supervision, was an appropriate alternative to full-time custody. The sentencing judge did not engage with that submission.

The applicant sought leave to appeal against the sentences on three grounds, the third of which was added at the hearing of the appeal.

  • Whether the sentencing judge erred in assessing the objective seriousness of the offences by placing them "midway between the mid-range and low range" for such offending
  • Whether the total sentences imposed were manifestly excessive
  • Whether the sentencing judge failed to engage with the applicant's ICO submissions and, in doing so, failed to comply with the requirements of s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which obliges a court to consider all available sentencing options before imposing full-time imprisonment

Decision

Ground 1 (objective seriousness): Dismissed. Ierace J, with whom the other judges agreed on this point, found no error in the sentencing judge's assessment that the objective seriousness of each offence fell midway between the mid-range and low range for such offences. The applicant had participated in the syndicate on only two occasions and was not among its leadership. On resentence, Ierace J reached the same conclusion on objective seriousness as the original sentencing judge.

Ground 2 (manifest excess): Not conclusively determined. Because the Court allowed the appeal on Ground 3 and re-exercised the sentencing discretion afresh, a definitive ruling on manifest excess was unnecessary. Hamill J expressly declined to reach a concluded view on this ground for that reason.

Ground 3 (failure to consider ICO under s 66): Upheld. The Court found that the sentencing judge had not engaged with the applicant's submissions concerning an ICO, and had not addressed the requirements of s 66 of the Crimes (Sentencing Procedure) Act, which requires a sentencing court to consider all available alternatives before imposing full-time custody. This constituted a material error that justified intervention. The Court drew on its own recent decision in Al Am Ali v R [2021] NSWCCA 281, which arose from the same sentencing proceeding and concerned the same error.

Resentence. On resentencing, Ierace J (supported by Hamill J) imposed a slightly reduced sentence on the second count and directed earlier release on an RRO. Hamill J noted that by the time of the appeal hearing the applicant had already served a substantial period in custody, making an ICO practically unavailable. Hamill J observed that, had the applicant not already served that time, an ICO would have been the appropriate penalty. Price J dissented from the proposed orders, finding that a lesser sentence was not warranted in law and would have dismissed the appeal outright.

Orders Made

The majority orders (proposed by Ierace J and supported by Hamill J) were:

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by the District Court on 9 April 2021 for the second offence quashed
  • In lieu thereof, the applicant sentenced to 22 months' imprisonment, backdated to commence 9 April 2021 and to expire 8 February 2023
  • Applicant to be released on 1 March 2022 upon entering a recognisance pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) in the sum of $1,000 to be of good behaviour for the balance of the order, and to appear on sentence if called upon in respect of any breach within that period

(Note: Price J would have granted leave but dismissed the appeal.)

Key Takeaways

  • A sentencing court's failure to engage with a defendant's ICO submissions, and its failure to address the requirements of s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) before imposing full-time imprisonment, constitutes a material error justifying appellate intervention.
  • Under s 66, a court sentencing for a NSW offence must consider all available alternatives to full-time custody, including an ICO, before imposing imprisonment. Silence on the issue where it has been raised is a ground for appeal.
  • Where an appeal is allowed on an error requiring resentencing, the Court of Criminal Appeal exercises the sentencing discretion afresh and need not resolve whether the original sentence was also manifestly excessive.
  • Practical circumstances prevailing at the time of appeal, including the fact that an applicant has already served a substantial term, can affect which sentencing options remain available and appropriate on resentence.
  • The decision applies principles developed in Al Am Ali v R [2021] NSWCCA 281, a closely related matter arising from the same syndicate and the same sentencing hearing, confirming the consistent approach taken by the Court to the s 66 obligation.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7, 8, 66
- Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)
- Crimes Act 1914 (Cth), ss 16A, 17A, 20, 20AB
- Criminal Code Act 1995 (Cth), ss 11.2, 400.3, 400.4
- Customs Act 1901 (Cth), ss 233, 233BABAD
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.13
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Al Am Ali v R [2021] NSWCCA 281
- Stanley v Director of Public Prosecutions (NSW) [2021] NSWCA 337
- Barakat v Director of Public Prosecutions (Cth) [2020] VSCA 185
- Blanch v R [2019] NSWCCA 304
- Chandab v R [2021] NSWCCA 186
- Abbas Elzein v R; Ahmad Elzein v R; Bilal Doughan v R [2021] NSWCCA 246
- Markarian v The Queen [2005] HCA 25
- Mourtada v R [2021] NSWCCA 211
- Mulato v Regina [2006] NSWCCA 282
- Obeid v R [2017] NSWCCA 221
- R v Cage [2006] NSWCCA 304
- R v Fangaloka [2019] NSWCCA 173
- R v Saleh [2015] NSWCCA 299
- R v Zhang [2017] SASCFC 5
- Wany v DPP [2020] NSWCA 318