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District Court 22 July 2022

R v Sabbouh (No. 2)

[2022] NSWDC 311

Firearms & weaponsPublic order & justice offences

Citation: R v Sabbouh (No. 2) [2022] NSWDC 311
Court: District Court of New South Wales
Date: 22 July 2022
Judge(s): Bennett SC DCJ

Background

The offender had been sentenced in earlier proceedings (R v Sabbouh [2022] NSWDC 281) for two offences: acquiring a firearm part without authority under the Firearms Act 1996 and acting as an accessory after the fact to a charge of discharging a firearm in disregard for safety under the Crimes Act 1900. The sentencing court imposed a two-year and four-month term of imprisonment to be served by way of an intensive correction order (ICO), effective from 19 May 2022.

One of the conditions of the ICO required the offender to perform 50 hours of community service. The sentencing assessment report, prepared in April 2022, had assessed the offender as suitable for community service, though it noted at that time no work was available for him.

The Court was subsequently notified by email from the Community Service Administrative Assistant at the Department of Communities and Justice in Bankstown that community service work had been exhausted across both the local office and additional district offices, making it impossible for the offender to fulfil that condition.

  • Whether the sentencing court retained any power to vary the community service condition of the ICO once sentence had been imposed.
  • Which body held the power to vary or revoke conditions of an ICO where community service work was unavailable.
  • What procedural steps were required to refer the matter to the appropriate authority.

Decision

Bennett SC DCJ confirmed that the sentencing court was functus officio in the matter. That Latin term means the court's judicial function in the proceeding is complete and it no longer holds jurisdiction to revisit or alter the sentence it imposed. Accordingly, the Court had no power to substitute an alternative condition for the community service requirement.

The Crown drew the Court's attention to sections 81 and 81A of the Crimes (Administration of Sentences) Act 1999. Under that scheme, conditions of an ICO are imposed at sentencing by the court, but may subsequently be varied or revoked by the Parole Authority. Section 81A sets out specific limitations on how the Parole Authority may exercise that power.

The Court also noted an inaccuracy in the notification from Community Corrections: the email stated the offender had been found unsuitable for community service in the assessment report, which was not an accurate reading of that report. The report had assessed him as suitable but noted no work was available at that time.

The Court directed the registry to notify Community Corrections Bankstown that the matter should be referred to the Parole Authority under sections 81 and 81A to address the failure to provide community service work for the offender.

Orders Made

  • The judgment was ordered to be taken out for revision so that it could be forwarded to the Parole Authority.

Key Takeaways

  • Once a sentencing court has imposed an ICO, it becomes functus officio and cannot revisit or alter the conditions of that order, including substituting an alternative for a community service requirement.
  • Under sections 81 and 81A of the Crimes (Administration of Sentences) Act 1999, the power to vary or revoke conditions of an ICO after sentencing rests with the Parole Authority, not the sentencing court.
  • The District Court confirmed that where community service work is unavailable, the appropriate mechanism is a referral by Community Corrections to the Parole Authority, rather than any return to the sentencing court.
  • Accuracy in communications from Community Corrections to the Court matters: the notification here incorrectly characterised the offender as unsuitable for community service, which the Court expressly corrected by reference to the assessment report itself.
  • A finding of suitability for community service in a sentencing assessment report is distinct from a finding that work is actually available; the two assessments should not be conflated.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 93G(1)(c)
- Crimes (Administration of Sentences) Act 1999 (NSW), ss 81, 81A, 164
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 5
- Firearms Act 1996 (NSW), s 50AA(1)

Cases
- R v Sabbouh [2022] NSWDC 281 (the principal sentencing decision)