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13
Court of Criminal Appeal 23 August 2023

Chan v R

[2023] NSWCCA 206

Fraud & dishonesty
THREE STEP APPROACH ERROR ESTABLISHED APPLICANT RESENTENCED COMMUNITY SAFETY PARAMOUNT COMMUNITY SAFETY INCUDES NON

Citation: Chan v R [2023] NSWCCA 206
Court: NSW Court of Criminal Appeal
Date: 23 August 2023
Judges: Kirk JA; Rothman J; N Adams J

Background

The applicant was sentenced in the District Court on three offences under the National Health Act 1953 (Cth) for making false claims on the Pharmaceutical Benefits Scheme in respect of prescriptions he had not actually dispensed. The sentencing judge imposed an aggregate term of two years' imprisonment, with release on a Recognizance Release Order after 14 months.

The sentencing judge found the applicant to be remorseful, with good prospects of rehabilitation and a low likelihood of reoffending. Despite those findings, her Honour declined to impose an Intensive Correction Order (ICO), concluding that the need for punishment, denunciation, and general deterrence required a full-time custodial sentence. Critically, she applied the sentencing considerations in s 16A of the Crimes Act 1914 (Cth) rather than s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) at the ICO consideration stage.

The applicant sought leave to appeal on three grounds: that the sentencing judge wrongly applied s 16A instead of s 3A when considering the ICO; that she failed to treat community safety as the paramount consideration; and that the sentence was manifestly excessive.

  • Whether a sentencing court dealing with a federal offence must apply s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), rather than s 16A of the Crimes Act 1914 (Cth), when considering whether to impose an ICO at the third step of the sentencing process.
  • Whether the sentencing judge was required to treat community safety as the paramount consideration under s 66(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) when deciding the ICO question, and whether she failed to do so.
  • Whether the original sentence was manifestly excessive.

Decision

Ground 1 (upheld unanimously): The court confirmed that the power to impose an ICO for federal offences is picked up by s 20AB of the Crimes Act 1914 (Cth), which incorporates the relevant State provisions as federal law to the extent they are capable of application and not inconsistent with Commonwealth law. The three-step approach to ICO sentencing applies: first, determine whether any penalty other than imprisonment is appropriate; second, fix the length of the sentence; and third, if the sentence is within the eligible range, consider whether an ICO should be imposed.

At that third step, the court held that the sentencing judge was required to apply the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), not the s 16A factors from the federal Act. Her Honour's application of s 16A at that stage was a material error. Kirk JA, Rothman J, and N Adams J all agreed on this point, though their Honours expressed the reasoning with varying degrees of elaboration.

Ground 2 (upheld by N Adams J; not determined by Kirk JA and Rothman J): N Adams J found an additional error in the sentencing judge's treatment of community safety. Section 66(1) requires that community safety be the paramount consideration when deciding whether to impose an ICO. Her Honour had made a positive finding about community safety under s 66(2) but failed to state that she was treating it as paramount or to explain why other sentencing considerations outweighed it, leaving open the inference that she had not applied s 66(1) correctly. N Adams J held that "community safety" encompasses non-violent harms to the community arising from the risk of reoffending, not only physical danger.

Re-sentence: The court resentenced the applicant to an aggregate term of 8 months and 17 days' imprisonment, to be served by way of ICO with standard conditions. Because an ICO cannot be backdated under s 71 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the term was adjusted by deducting a period equivalent to the pre-sentence custody already served. Exceptional circumstances were found under s 73A(1), meaning only standard conditions were imposed.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Original sentence quashed.
  • Aggregate sentence of 8 months and 17 days' imprisonment imposed, commencing 23 August 2023.
  • Sentence to be served by way of Intensive Correction Order, expiring 9 May 2024.
  • Standard conditions imposed: the offender must not commit any offence; and must submit to supervision by a community corrections officer for the term of the order.
  • The offender to report to Community Corrections no later than within seven days.

Key Takeaways

  • When sentencing for a federal offence and considering whether to impose an ICO, a court applies the s 16A Crimes Act 1914 (Cth) factors at the first two steps (deciding imprisonment is warranted and fixing the length), but must then apply s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) at the third step of the ICO consideration. Conflating those two frameworks constitutes a material error.
  • Section 20AB of the Crimes Act 1914 (Cth) picks up NSW ICO provisions and applies them as federal law, subject to the limitation that the State law must be capable of application and not inconsistent with Commonwealth law. The adoption proceeds by analogy, allowing for translation where necessary to operate in the federal context.
  • Under s 66(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), community safety is the paramount consideration when a court decides whether to make an ICO. A positive finding about community safety at the s 66(2) assessment stage does not suffice if the court fails to state expressly that it is treating community safety as paramount or to explain why other considerations prevailed.
  • "Community safety" for the purposes of the ICO regime is not confined to physical danger. It includes non-violent harms to the community that may result from future reoffending.
  • Where an ICO cannot be backdated under s 71, the length of the ICO term on resentence may be reduced to account for pre-sentence custody already served in full-time detention, following the approach confirmed in Mandranis v R [2021] NSWCCA 97.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 16A, 17A, 20AB, 20(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 7, 8, 66-69, 71, 73A(1)
- National Health Act 1953 (Cth), s 103(5)(g)
- Corporations Act 2001 (Cth), s 1308(2)
- Crimes Act 1900 (NSW), s 178BB
- Judiciary Act 1903 (Cth), ss 68(1), 79(2)
- District Court Act 1973 (NSW), s 176
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Key Cases:
- Stanley v Director of Public Prosecutions (NSW) (2023) 97 ALJR 107; [2023] HCA 3
- Attorney-General (Cth) v Huynh (2023) 97 ALJR 298; [2023] HCA 13
- Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Mourtada v The Queen (2021) 290 A Crim R 514; [2021] NSWCCA 211
- Mandranis v R (2021) 289 A Crim R 260; [2021] NSWCCA 97
- Homewood v R [2023] NSWCCA 159
- Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301
- Patel v R (2022) 366 FLR 314; [2022] NSWCCA 93