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11
Court of Criminal Appeal 6 December 2024

Vamadevan v The King

[2024] NSWCCA 223

Also reported as (2024) 116 NSWLR 195
Public order & justice offences

Citation: Vamadevan v The King [2024] NSWCCA 223
Court: NSW Court of Criminal Appeal
Date: 6 December 2024
Judges: Bell CJ; Payne JA; N Adams J; Chen J; Rigg J

Background

Over four years between 2018 and 2022, the applicant made anonymous phone calls to 46 victims, mostly women, delivering degrading sexual comments, racially offensive remarks, and threats of violence. On some occasions he used victims' names and the names of their children. Much of this conduct occurred while the applicant was on bail or subject to a recognizance release order for earlier Commonwealth offences.

The applicant pleaded guilty in the District Court to seven counts of using a carriage service in a menacing, harassing or offensive way (s 474.17(1) of the Criminal Code Act 1995 (Cth)) and one count of dealing in identification information to facilitate a Commonwealth offence (s 372.1(1)). He also asked the court to take into account a ninth similar offence under s 16BA of the Crimes Act 1914 (Cth).

At sentencing, McGuire DCJ imposed an aggregate term of two years' imprisonment to be served by full-time custody, with release on a recognizance release order after 15 months. The applicant sought an intensive correction order (ICO) as an alternative to full-time custody. That application was refused, and the applicant appealed to the Court of Criminal Appeal.

  • Whether, when a NSW court considers making an ICO for a federal offender under s 20AB of the Crimes Act 1914 (Cth), it must apply s 16A of the Crimes Act 1914 (Cth) or s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether any lesser sentence, including an ICO, was warranted in law on resentencing

Decision

The statutory construction question

The Crown conceded two of the three grounds of appeal, which meant the sentence had to be quashed and the Court proceeded to resentence. In doing so, the Court was required to identify the correct legal framework governing ICOs for federal offenders. The Court held that s 16A of the Crimes Act 1914 (Cth), not s 66 of the NSW Sentencing Act, governs the making of an ICO under s 20AB. The text, context and purpose of s 20AB(1) point to Commonwealth law as the operative framework.

The Court found that s 16A and s 66 are incompatible and cannot be applied simultaneously. Section 66 of the NSW Sentencing Act conditions the exercise of the discretion to make or refuse an ICO in ways that conflict with the Commonwealth scheme. Section 20AB(3) of the Crimes Act expressly prohibits the application of State provisions inconsistent with Commonwealth law. As a result, the Court overruled three prior NSWCCA decisions, Chan v R [2023] NSWCCA 206, AM v R [2024] NSWCCA 26, and Khanat v R [2024] NSWCCA 41, each of which had proceeded on the basis that s 66 applied. The Victorian Court of Appeal's decision in Atanackovic v The Queen [2015] VSCA 136, reaching the same conclusion, was followed.

Whether a lesser sentence was warranted

On resentencing, applying s 16A of the Crimes Act, the Court declined to impose an ICO. The applicant's offending was serious and sustained: mobile phones are an essential personal item, and the victims carried the fear the applicant had inflicted wherever they went. The Court found that the harm caused was significant and that an ICO would not represent a sentence of severity appropriate to all the circumstances. The need for both general and specific deterrence was prominent. Leave to appeal was granted but the appeal was dismissed because no lesser sentence was warranted in law.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • When sentencing a federal offender in NSW, a court considering an ICO under s 20AB of the Crimes Act 1914 (Cth) must apply s 16A of the Crimes Act, not s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Section 16A and s 66 are incompatible: they cannot both govern the same sentencing discretion, and s 20AB(3) prohibits the application of State provisions that are inconsistent with Commonwealth law.
  • Three recent NSWCCA decisions applying s 66 to federal offenders in this context (Chan, AM v R, and Khanat) were expressly overruled by a five-judge bench.
  • In dismissing the appeal on resentencing, the Court emphasised the sustained nature of the offending, the significant harm inflicted on 46 victims, and the weight of general and specific deterrence as reasons why an ICO was not appropriate.
  • The Victorian Court of Appeal's approach in Atanackovic v The Queen, treating Commonwealth law as governing ICO decisions for federal offenders, has now been adopted as correct in NSW.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), Part IB, ss 16A, 16B, 16BA, 17A, 20, 20A, 20AB, 20BQ, 22
- Criminal Code Act 1995 (Cth), Schedule 1, ss 372.1, 474.17
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 3A, ss 3A, 4B, 5, 7, 17D, 66, 67, 68, 70, 71, 72, 73, 73A, 73B
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 11
- Criminal Appeal Act 1912 (NSW), s 6
- Judiciary Act 1903 (Cth), ss 68, 79, 80
- Sentencing Act 1991 (Vic), ss 5, 6D

Key Cases
- Stanley v Director of Public Prosecutions (NSW) (2023) 296 ALJR 107; [2023] HCA 3
- Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Atanackovic v The Queen (2015) 45 VR 179; [2015] VSCA 136 (followed)
- Chan v R [2023] NSWCCA 206 (overruled)
- AM v R [2024] NSWCCA 26 (overruled)
- Khanat v R [2024] NSWCCA 41 (overruled)
- McGregor v The King [2024] NSWCCA 200
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37