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Court of Criminal Appeal 1 March 2024

AM v R

[2024] NSWCCA 26

Public order & justice offences
CRIMINAL LAW SENTENCING INTENSIVE CORRECTION ORDER REASONED SENTENCING JUDGMENT

Citation: AM v R [2024] NSWCCA 26
Court: Court of Criminal Appeal
Date: 1 March 2024
Judges: Davies J, Hamill J, Huggett J

Background

The applicant pleaded guilty to a single Commonwealth offence of conspiring to assist his younger brother to engage in hostile activities in Syria, contrary to s 11.5 of the Criminal Code Act 1995 (Cth) and s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). The offending spanned roughly six to twelve months between July 2012 and August 2013 and involved sending money, communications, and supplies, including tactical equipment, to his brother overseas. The maximum penalty was ten years imprisonment.

The applicant was not charged until October 2020, some six years after a search warrant was executed at his home, through no fault of his own. He was sentenced in the District Court on 27 April 2023 by Judge Turner, who imposed a total sentence of two years imprisonment with a recognizance release order taking effect in April 2024, after the applicant had served approximately twelve months.

The applicant sought leave to appeal on a single ground: that the sentencing judge erred by failing to consider the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) when determining whether to impose an intensive correction order (ICO) rather than a full-time custodial sentence.

Legal Issues

  • Whether the sentencing judge was required to expressly consider the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) when deciding whether to impose an ICO under s 66(3) of that Act, even when sentencing for a Commonwealth offence
  • Whether substituting reference to Part IB of the Crimes Act 1914 (Cth) for s 3A satisfied that statutory requirement
  • Whether, if error was established, re-sentencing should result in a less severe sentence given the applicant had nearly completed the custodial portion of his original sentence

Decision

Ground 1: Error in applying s 66(3) without reference to s 3A

The Court found that the sentencing judge erred by failing to consider the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) when deciding whether to impose an ICO (at [4]). The sentencing judge referred instead to Part IB of the Crimes Act 1914 (Cth), a collection of diverse federal sentencing provisions that does not articulate the purposes of sentencing in the same way s 3A does. Reading the remarks as a whole, the Court found the sentencing judge had not considered all s 3A purposes in addressing the ICO question (at [39]).

The error was reinforced by the sentencing judge's failure to consider the promotion of the applicant's rehabilitation as a distinct purpose relevant to the ICO decision, even though very favourable findings had been made about his actual rehabilitation over nearly a decade since the offending (at [40]-[42]). The Court drew on the principle articulated in Chan v R [2023] NSWCCA 206 that there is a material difference between assessing an offender's prospects of rehabilitation and actively considering the promotion of that rehabilitation as a purpose of punishment when evaluating the appropriateness of an ICO (at [41]).

The Court emphasised that nothing in its analysis was a criticism of the sentencing judge. The relevant appellate authority, Chan, was decided after the applicant was sentenced, and the judge had correctly applied the High Court's decision in Stanley despite not having the benefit of submissions on the point (at [7]-[11]).

Re-sentencing

Having established error, the Court re-exercised the sentencing discretion. By the time of the appeal, the applicant had already served over nine months in custody, making an ICO an impractical and inappropriate disposition. The Court adopted the sentencing judge's factual findings without disturbance (at [48]-[49]), including that the offending was relatively serious and not in the lower range for this type of offence, and that the only appropriate sentence was imprisonment (at [50], [59]).

The Court then synthesised all relevant matters, including the objective seriousness of the offending, the applicant's excellent rehabilitation, the lengthy unexplained pre-charge delay, his depression at the time of the offence, the impact on his family, his early plea (attracting a 25% discount), and the importance of general deterrence and denunciation (at [57]-[61]). It arrived at a head sentence of two years imprisonment, with nine months to be served in custody and the balance subject to a recognizance release order. Because the applicant had already served that custodial period by the time of the hearing, the Court directed his immediate release (at [62]-[65]).

Orders Made

  • Leave to appeal granted
  • Appeal against sentence allowed
  • Sentence imposed in the District Court on 27 April 2023 quashed
  • Applicant re-sentenced to two years imprisonment commencing 27 April 2023 and expiring 26 April 2025
  • Recognizance release order made under s 20(1)(b) of the Crimes Act 1914 (Cth) directing release after nine months (that is, on 26 January 2024), on the applicant giving surety of $100 without security and entering a recognizance to be of good behaviour for the remainder of the term
  • Noting the nine months had already been served, the Court directed the applicant's immediate release upon entering the recognizance

Key Takeaways

  • Under s 66(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing court must expressly consider the purposes of sentencing set out in s 3A when deciding whether to impose an ICO, even when sentencing for a Commonwealth offence. Reference to Part IB of the Crimes Act 1914 (Cth) does not satisfy that requirement (at [39]).

  • A material distinction exists between assessing an offender's prospects of rehabilitation as part of the subjective case and treating the promotion of rehabilitation as a purpose of punishment that must be weighed when considering an ICO. Failure to engage with the latter is a distinct error (at [41]-[42]).

  • Favourable findings on rehabilitation that influence the length of a sentence do not automatically satisfy the requirement to consider promotion of rehabilitation as a purpose in the ICO analysis. Those two inquiries are separate (at [42]).

  • Where an appellate court re-sentences and the custodial component of the original sentence has already been served, it is not artificial, and is in fact appropriate, to take that circumstance into account in fashioning the re-sentence. An ICO cannot be backdated and must commence on the day it is imposed (at [46]-[47]).

  • The Court of Criminal Appeal confirmed that an established sentencing error, even one arising from a legal development occurring after the original sentencing, requires the appellate court to re-exercise the sentencing discretion afresh. The practical consequences for the offender, including time already served, are relevant to determining the appropriate disposition on appeal (at [44]-[47]).

Legislation and Cases Referenced

Legislation
- Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), s 7(1)(e)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 66, 66(3), 71
- Crimes Act 1914 (Cth), Pt IB, s 16A
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Criminal Code Act 1995 ( Cth), s 11.5

Cases
- Casella v R [2019] NSWCCA 201
- Chan v R [2023] NSWCCA 206
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Mandranis v R [2021] NSWCCA 97; (2021) 289 A Crim R 260
- Mandranis v R [2021] NSWCCA 97; (2021) 289 A Crim R 260
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
- R v Fangaloka [2019] NSWCCA 173
- R v Pullen [2018] NSWCCA 264; (2018) 275 A Crim R 509
- R v Todd (1982) 2 NSWLR 517
- R v Winchester (1992) 58 A Crim R 354
- Stanley v Director of Public Prosecutions (NSW) (2021) 107 NSWLR 1; [2021] NSWCA 337
- Stanley v Director of Public Prosecutions (NSW) (2023) 296 ALJR 107; [2023] HCA 3
- Tenenboim v R [2024] NSWCCA 1
- Turnbull v R [2019] NSWCCA 97
- Wany v DPP (2020) 103 NSWLR 620; [2020] NSWCA 318