Citation: Chamakuri v R [2026] NSWCCA 176
Court: Court of Criminal Appeal
Date: 30 October 2026
Judge(s): N Adams CJ at CL, Campbell J, Coleman J
Background
The applicant, a man in his early fifties with no prior criminal history, was convicted by jury of participating in a criminal group and multiple counts of attempting to obtain financial advantage by deception. The offending involved a fraudulent bank guarantee scheme operated with co-offenders, as well as a separate scheme using fraudulent bank vouchers deposited at ATMs. He was sentenced to an aggregate term of three years imprisonment with a non-parole period of 18 months.
At a further hearing, the sentencing judge considered whether the term of imprisonment should be served in the community by way of an intensive correction order (ICO). The applicant had been assessed as suitable for home detention and community service work, and psychiatric evidence indicated that incarceration would significantly worsen his Major Depressive Disorder and pose a risk of self-harm. Nonetheless, the sentencing judge declined to impose an ICO and ordered the sentence to be served by full-time detention.
The applicant sought leave to appeal, arguing that the sentencing judge erred in her application of section 66(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). He contended that, given the favourable findings on his subjective case, it was not open to the judge to conclude that the comparative risk inquiry under section 66(2) was inconclusive.
Legal Issues
- Whether the sentencing judge erred in treating the applicant's lack of insight and failure to accept responsibility as factors rendering the section 66(2) comparative risk inquiry inconclusive, rather than concluding that an ICO was more likely than full-time detention to address his risk of reoffending.
- Whether, having found the section 66(2) assessment inconclusive, the sentencing judge was entitled to treat other sentencing purposes under section 66(3) as determinative in declining to impose an ICO.
Decision
Ground 2 (sole remaining ground): Section 66(2) application
The Court of Criminal Appeal held that the applicant had not demonstrated any error in the sentencing judge's approach to section 66(2) (at [79]). The sentencing judge had accepted numerous favourable findings, including that the applicant had no pro-criminal ideations, was not drug-dependent or violent, had strong family support, had not reoffended while on bail, and faced a significantly deleterious impact on his mental health from incarceration (at [82]-[83]). However, she also factored in his lack of insight and failure to accept responsibility for the offending, which she treated as relevant to the forward-looking comparative assessment (at [67]).
Taking all relevant matters together, the sentencing judge concluded that the evidence was inconclusive as to whether an ICO or full-time detention would be more likely to address the applicant's risk of reoffending. The Court held that this conclusion was open to her (at [85]). The Court rejected the applicant's contention that the volume of favourable findings on the subjective case precluded a contrary conclusion, noting that this submission would effectively prevent a sentencing judge from weighing all relevant factors in the round (at [84]).
Section 66(3) and other sentencing purposes
Where the section 66(2) assessment is inconclusive, community safety does not have a determinative effect, and other purposes of sentencing may assume significance and become decisive (at [86]-[87]). The Court confirmed that, in those circumstances, it was open to the sentencing judge to treat adequate punishment, specific deterrence, general deterrence (even as moderated by the applicant's mental health), accountability, and denunciation as requiring the sentence to be served by full-time detention (at [88]). Campbell J added that even a favourable section 66(2) finding would not have made an ICO inevitable as a matter of law, though such a finding usually has a decisive effect (at [4]).
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
- Bail revoked; the applicant is to be taken into custody to serve the balance of the sentence, with credit for 13 days already served.
Key Takeaways
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Where the evidence under section 66(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) is inconclusive as to whether an ICO or full-time detention is more likely to address an offender's risk of reoffending, community safety does not operate as a determinative factor and the court may give decisive weight to other sentencing purposes under section 66(3) (at [86]-[87]).
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A sentencing judge conducting the section 66(2) comparative risk assessment is entitled to treat an offender's lack of insight and failure to accept responsibility as factors capable of rendering that assessment inconclusive, even where other subjective factors favour the offender (at [84]-[85]).
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In dismissing the appeal, the Court of Criminal Appeal confirmed that a favourable section 66(2) finding does not automatically produce an ICO as a matter of law, although it will usually have a decisive effect: the outcome remains subject to the broader evaluative exercise under section 66(3) (at [4]).
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No error arises merely because a sentencing judge reaches a conclusion adverse to the offender after weighing multiple, partly competing, findings on the subjective case. The applicant's submission would have foreclosed genuine weighing of all relevant matters (at [84]).
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Psychiatric evidence of significant risk of mental health deterioration in custody is a relevant consideration in the ICO assessment, but it does not, of itself, compel a conclusion that community safety is best served by an ICO rather than full-time detention (at [64]-[67], [85]).
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)
Cases
- Kapua v R [2023] NSWCCA 14
- R v Vachalec (1981) 1 NSWLR 351
- Stanley v Director of Public Prosecutions (NSW) (2023) 278 CLR 1; [2023] HCA 3
- Zheng v R [2023] NSWCCA 64