Chalhoub v R

Judgment

1. PAYNE JA: On 13 November 2020, John Chalhoub ('the applicant') was sentenced by his Honour Judge Weinstein SC sitting in the Sydney District Court. The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against that sentence.
2. The applicant was sentenced in relation to two counts of "manufacture a prohibited drug", contrary to s 24(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The offences concerned the manufacture of 394.6 grams of cannabis oil (Count 1) and 378 grams of cannabis resin (Count 2). Each offence carried a maximum penalty of 15 years imprisonment or a fine of $220,000 or both. There is no applicable standard non-parole period.
3. The applicant asked the Court to take into account on a Form 1 a further offence of "deal with property reasonably suspected of being the proceeds of crime", namely $21,935, pursuant to s 193C(2) of the Crimes Act 1900 (NSW), for which the maximum penalty is 3 years' imprisonment. The Form 1 offence was taken into account when sentencing the applicant for Count 1.
4. The applicant was sentenced to an aggregate term of imprisonment for 1 year and 6 months to commence on 18 October 2020 with an aggregate non-parole period of 9 months. The applicant is first eligible for release to parole on 17 July 2021. The aggregate head sentence expires on 17 April 2022.
5. His Honour specified the following indicative sentences: 1. Count 1 - 15 months; 2. Count 2 - 12 months.
6. In circumstances which will become apparent, it is relevant that the applicant was sentenced at the same time as a co-offender, Joseph Khoury. Although no issue of parity arises on the appeal, there is an issue about the extent to which the sentencing judge took into account facts agreed solely for the purposes of the sentence proceedings involving Mr Khoury when sentencing the applicant.
7. The applicant relies upon two grounds of appeal: "[Ground 1:] The learned sentencing judge erred - (a) in failing to undertake the assessment mandated by s 66(2) of the Crimes (Sentencing Procedure) Act 1999; or (b) in failing to explain in the reasons for judgment what assessment had been made and how it had been taken into account. [Ground 2:] The learned sentencing judge erred by sentencing the applicant according to the wrong statement of facts."
8. On 9 October 2020, the sentence proceedings of the applicant and Mr Khoury were heard together. A bundle of documents relating to the applicant, which included a Statement of Agreed Facts, was tendered by the Crown and marked as Exhibit 1.
9. The applicant did not give evidence in the sentence proceedings. Tendered on his behalf was a bundle of documents marked as Exhibit 2 comprising an outline of written submissions, a letter of apology written by the applicant, the death certificate of the applicant's father, the results of a chest CT scan conducted on the applicant's brother and two letters of support.
10. The agreed facts established that between February 2018 and his arrest on 13 April 2018, the applicant manufactured cannabis oil and cannabis resin. Over that period, the police conducted extensive physical and electronic surveillance of the applicant and others at a rural property owned by the applicant in Bogee. The applicant was observed regularly attending the property and carrying numerous plastic cubes from the garage of the house to a vehicle registered in the name of his then-girlfriend.
11. On 20 February 2018, the police observed various white plastic cubes, various cylindrical items and a pedestal fan inside the garage. On 29 March 2018, the police observed a plastic cube that was three-quarters full of liquid and cooking pots with other cooking items in the garage and, in one of the sheds, four black metal drums (approximately 200L), a number of white plastic cubes (approximately 20L) and a white chemical drum labelled as containing chemical solvents.
12. The applicant and his brother, Freddie Chalhoub, were in regular phone contact with Joseph Khoury. They discussed picking up and dropping off items at their respective properties. The applicant and Freddie Chalhoub discussed the purchase of alcohol, which was used to extract cannabis oil from cannabis leaf, from various places and the location of syringes and capsules at a house in Merrylands, where they both resided.
13. In recorded telephone conversations with various people, the applicant provided instructions for the use and dosage of cannabis oil, including dosages as a form of "treatment" for illnesses including cancer and diabetes. He discussed his "treatment" of numerous people, including children with leukaemia and people on dialysis. The applicant arranged meetings with people with illnesses such as cancer. The applicant also sent people a copy of the paper entitled "A Cancer Killing Profile", which discussed courses of treatment for cancer using cannabis oil.
14. On 10 April 2018, Freddie Chalhoub took steps to obtain a further quantity of cannabis leaf from Joseph Khoury (who in turn made arrangements to obtain it from an unidentified third party). Freddie Chalhoub and Joseph Khoury arranged to meet at 8:00pm the following evening for the purpose of the supply.
15. At about 1:00am on 11 April 2018, the police observed the applicant arrive at his rural property in Bogee and enter the garage. Nearly six hours later, the applicant was seen removing a number of cardboard boxes with blue markings from the garage and into his car. From the car, he carried a white plastic chemical cube and a white bucket to the garage before eventually departing at 8:45am.
16. On the evening of 11 April 2018, the applicant, Freddie Chalhoub and Joseph Khoury arranged to pick up an amount of cannabis leaf they had ordered. Later the same evening, the applicant caused a batch of cannabis oil to spill in the final stages of the manufacture. The applicant had a conversation with his then-girlfriend and complained that he "spilt everything".
17. On 12 April 2018, Freddie Chalhoub was seen to take receipt of a large drum from Joseph Khoury. The drum contained a quantity of cannabis leaf. When asked if he was going to get started on it tonight, Freddie Chalhoub replied "nup".
18. On 13 and 16 April 2018, the police obtained search warrants for the applicant's residence at Merrylands and his property at Bogee. At both properties, the police located a significant number of items, equipment and chemicals consistent with the manufacture of cannabis oil and cannabis resin. Many of the items, equipment and chemicals located were consistent across the two properties in terms of type, make and model. Two copies of the paper entitled "A Cancer Killing Profile" were located; one in a bedroom at Merrylands and another copy in the lounge room at Bogee.
19. The police located a clandestine laboratory in the garage of the property at Merrylands. A significant number of items seized were found to contain amounts and traces of tetrahydrocannabinol ('THC') and cannabidiol, as well as chemicals used in the manufacture process of cannabis oil and cannabis resin. The applicant's fingerprint impressions were located on some of the items.
20. During the execution of the search warrant at Merrylands, the police seized a total of 394.6 grams of cannabis oil (Count 1). Cannabis oil was found in 16 syringes, inside a 25L plastic cube with a black lid and inside a 4.5L baking dish. A total of 378 grams of cannabis resin was located at the Merrylands property (Count 2). Cannabis resin was found in 16 syringes (some of which were labelled "THC"), 12 capsules inside a clear container and in two rice cookers.
21. The police located a total of $21,935 in cash in the applicant's possession (Form 1); $18,150 was located, along with a significant amount of jewellery, in a safe in the applicant's bedroom at Merrylands and $3,785 was located in his pocket at the time of his arrest.
22. At the Bogee property, the police located further items and chemicals consistent with the manufacture of cannabis oil and resin in the garage, shed and bird aviary. Many of these items were found to contain amounts of THC and cannabidiol, as well as chemicals used in the manufacture process. The items were used in the manufacture of cannabis oil and resin. Also found was a green plastic 75L bin almost full of green vegetable matter consistent with wet cannabis leaf, which was sitting in isopropyl alcohol.
23. A forensic chemist, Dr Daniel Coghlan, opined that THC resin had been extracted and oil containing THC had been manufactured at both the applicant's Merrylands residence and the applicant's rural property at Bogee.
24. On 13 April 2018, the applicant, Joseph Khoury and Freddie Chalhoub were arrested. When the police informed the applicant that he was under arrest for the manufacture of prohibited drugs he said, "ok, isn't this an overreaction?" He then pointed in the direction of the clandestine laboratory and said, "what are you doing with that?" The police informed him that they were seizing the contents of the laboratory. The applicant told the police, "be careful with it. I will be getting it all back. You're making a mistake. I'm helping people". The police asked him whether he was a doctor, to which he replied, "no, but I studied cannabinoids. I published a book".

The sentencing judgment

1. The sentencing judge assessed the objective seriousness of each of the two offences as falling "just below the mid-range of objective seriousness" noting that the applicant was involved "at all levels".
2. In relation to the applicant's subjective circumstances, the sentencing judge found that: 1. for the utilitarian value of the applicant's pleas of guilty, he should be afforded a discount of 15%; 2. the applicant's criminal history disentitled him to the leniency he would have otherwise been afforded; 3. the applicant had been subject to "moderately onerous bail conditions" for about two and a half years and had served 26 days in pre-sentence custody; 4. the applicant had "evolving insight" and "demonstrated some insight into his offending, notwithstanding his misguided altruism"; and 5. the applicant had "reasonable" prospects of rehabilitation.
3. The sentencing judge adopted the Crown's submissions that this case warranted particular consideration of general deterrence and denunciation, noting that the applicant touted the oil as a cure and treatment for illnesses. The sentencing judge considered that the applicant's activities presented a real danger to the community.
4. The sentencing judge took into account the Form 1 offence in accordance with the guideline judgment: Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518, noting that it operated to increase the community's entitlement to retribution.
5. Having determined that no penalty other than imprisonment was appropriate, the sentencing judge fixed an aggregate sentence of imprisonment for 1 year and 6 months.
6. His Honour then turned to consider whether it was appropriate that that sentence be served by way of an intensive correction order ('ICO'), as had been urged on the applicant's behalf. In doing so, the sentencing judge had express regard to the following matters: 1. the legislative intention in providing for the imposition of ICOs by reference to the second reading speech to the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill 2017 (NSW), including the Attorney-General's observation that research had demonstrated that community supervision is better at reducing reoffending than a short prison sentence; [1] 2. that in R v Fangaloka [2019] NSWCCA 173 this Court discussed the effect of the competing purposes of sentencing on the consideration of whether a sentence of imprisonment should be served in custody or by way of an ICO; 3. that community safety is the paramount consideration in determining whether to impose an ICO, in accordance with s 66(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('the Sentencing Act'); 4. this Court's decisions in R v Pullen [2018] NSWCCA 264; (2018) 275 A Crim R 509, Fangaloka, Casella v R [2019] NSWCCA 201 and Karout v R [2019] NSWCCA 253.
7. Having considered the above, the sentencing judge determined not to impose an ICO and gave reasons as follows: "[43] In all the circumstances of this particular case, I am not satisfied that the purposes of sentencing under s 3A and the paramount consideration of community safety pursuant to s 66 of the Sentencing Act are best achieved by the imposition of an ICO, in particular because of my view of the offender's still evolving insight into his offending and the need for denouncing the offender's conduct. It was suggested by Mr Stanton that the offending caused no harm. The evidence is silent on that point, and I make no finding in that regard, although I accept that there is no evidence of harm."
8. The sentencing judge then fixed an aggregate non-parole period of 9 months.

Ground 1 of the appeal

1. The applicant does not submit that the sentencing judge failed to consider whether it was appropriate that the sentence be served by way of an ICO or that, in doing so, the sentencing judge failed to consider community safety. The sentencing judge carefully considered those matters: "[39] I intend to proceed to sentence the offender by way of an aggregate sentence pursuant to s53A of the Sentencing Act. I have been mindful to ensure that the aggregation of the sentences reflects an appropriate measure of the total criminality involved. Taking all matters into account, as I am satisfied that no alternative other than a sentence of imprisonment is appropriate, the next step is to determine the aggregate sentence in the quantitative sense. Having considered all of the matters I have referred to in this sentence judgment, including his moderately onerous bail conditions, I impose an aggregate sentence of imprisonment of 1 year, 6 months. [40] The offender's counsel cavilled for an ICO in all of the circumstances. I note that an ICO is available only if the sentence of imprisonment is 3 years or less. It may be made in respect of an aggregate sentence of imprisonment, but the aggregate term must not exceed 3 years: section 68(2) of the Sentencing Act. I must consider whether an alternative to full time custody is appropriate, namely, in these circumstances, an ICO. On this question, I note that the passing of the Sentencing Act has provided for alternative sentencing options in order to provide justice to the community as a whole. For example, in the second reading speech regarding the legislation, the Attorney-General stated: 'We know from Australian and international research that community supervision, combined with programs that target the causes of crime reduce offending. We know that community supervision is better at reducing reoffending than leaving an offender in the community with no supervision, support or programs. We also know that community supervision is better at reducing reoffending than a short prison sentence.' [41] In R v Fangaloka [2019] NSWCCA 173, the court discussed the effect of the competing purposes of sentencing on the consideration of whether a sentence of imprisonment should be served in custody or by way of an ICO. [42] Community safety is the paramount consideration when determining whether to impose an ICO (s66(1) of the Sentencing Act, although I have had regard to the recent decisions of R v Pullen [2018] NSWCCA 264, R v Fangaloka, Casella v R [2019] NSWCCA 201 and Karout v R [2019] NSWCCA 253). [43] In all the circumstances of this particular case, I am not satisfied that the purposes of sentencing under s 3A and the paramount consideration of community safety pursuant to s 66 of the Sentencing Act are best achieved by the imposition of an ICO, in particular because of my view of the offender's still evolving insight into his offending and the need for denouncing the offender's conduct. It was suggested by Mr Stanton that the offending caused no harm. The evidence is silent on that point, and I make no finding in that regard, although I accept that there is no evidence of harm."
2. The applicant's complaint is that, when considering community safety, the sentencing judge failed to assess whether the making of an ICO or serving the sentence by way of full-time detention was more likely to address the applicant's risk of re-offending, and therefore failed to perform the assessment required by s 66(2) of the Sentencing Act. The respondent submitted that, properly considered, the remarks on sentence demonstrate that the sentencing judge undertook that assessment.
3. I do not agree with the applicant's submission.
4. Section 66 of the Sentencing Act, which is central to the applicant's complaint, is found in Div 2 of Pt 5 of the Sentencing Act. It is in the following terms: 66 Community safety and other considerations (1) Community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender. (2) When considering community safety, the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending. (3) When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant.
5. In Fangaloka, Basten JA (with whom Johnson and Price JJ agreed) held that s 66(2) of the Sentencing Act required the sentencing court "to have regard to a specific consideration, namely the likelihood of a particular form of order addressing the offender's risk of reoffending" (at [65]; see also Wany v DPP [2020] NSWCA 318 at [56], [60] per McCallum JA, with whom Simpson AJA agreed).
6. The sentencing judge assessed the applicant's risk of re-offending as well as his prospects of rehabilitation and the need for personal deterrence. After doing so his Honour concluded: "[27] In my opinion, the offender has demonstrated some insight into his offending, notwithstanding his misguided altruism. That he says he will not engage in such behaviour until it is legal, in my opinion is demonstrative of evolving insight. I find that the offender has reasonable prospects of rehabilitation, noting the finding of Ms Issa that he is at a low risk of re-offending."
7. The sentencing judge drew on those findings where he stated that: "[43] In all the circumstances of this particular case, I am not satisfied that the purposes of sentencing under s 3A and the paramount consideration of community safety pursuant to s 66 of the Sentencing Act are best achieved by the imposition of an ICO, in particular because of my view of the offender's still evolving insight into his offending and the need for denouncing the offender's conduct."
8. It is clear that the sentencing judge considered the relevant question and concluded that an ICO was not more likely than full-time custody to address the applicant's risk of re-offending because of his "still evolving insight" and that, in any event, such an order would fail adequately to address the purposes of sentencing and the need for denunciation. Both findings were well open to the sentencing judge.
9. A fair reading of the sentencing reasons demonstrates that the sentencing judge drew a direct link between the applicant's level of insight and his risk of re-offending. It is uncontroversial that the two factors are connected to one another. The evidence in the present case demonstrated that, at the time of his arrest, the applicant showed no insight into his offending behaviour. While there was some evidence of remorse, when interviewed by Ms Mona Issa (the author of the Sentencing Assessment Report), the applicant was unable, without being prompted, to identify the negative impacts of cannabis oil on the community. In his letter to the sentencing court, the applicant referred to his "research" and concluded that he accepted that he would have to wait for cannabis oil to be legalised to try and treat his brother with it. It was apparent that the applicant continued to hold the beliefs that had motivated his offending as well as a desire to act on them.
10. In those circumstances, the sentencing judge was correct to describe the applicant's level of insight as "still evolving" and to conclude that, as a result, the making of an ICO was not more likely to address his risk of re-offending. His Honour did so having considered the observation of the Attorney-General in the second reading speech to the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill 2017 (NSW) that research showed, inter alia, that community supervision is better at reducing re-offending than a short prison sentence. The sentencing judge eschewed reliance on the assumption which s 66 is designed to guard against, and undertook the assessment required by s 66(2) on the particular facts and circumstances of this case. No error has been shown.
11. The applicant's alternative submission, that the sentencing judge erred by failing to explain what assessment had been made and how it had been taken into account, should also be rejected. The sentencing judge concluded, inter alia, that community safety was not "best achieved by the imposition of an ICO" in this case. This was because an ICO was not more likely than full-time custody to address the applicant's risk of re-offending, because of his "still evolving insight".
12. The sentencing judge carefully considered whether an ICO should be made. In doing so, his Honour undertook the three-stage process referred to in Fangaloka at [44]-[45] per Basten JA (with whom Johnson and Price JJ agreed); see also Kember v R [2020] NSWCCA 152 at [39] per Bellew J (with whom Simpson AJA and Wilson J agreed). In determining whether such an order was appropriate, his Honour expressly considered community safety, undertook the task mandated by s 66(2) and gave reasons for his conclusion that community safety was not best achieved by the imposition of an ICO. No error has been shown. This ground of appeal should be dismissed.

Ground 2 of the appeal

1. The applicant contends that the sentencing judge erred in finding that he was giving advice to people that was contrary to the advice of medical professionals. He submits, in effect, that that finding was not open on the evidence tendered in his proceedings. That submission overlooks the fact that it was an agreed fact in the applicant's proceedings that he had been captured in recorded conversations doing the following: 1. providing instructions for the use and dosage of cannabis oil and THC including dosages as a form of "treatment" for people suffering from illnesses, including cancer and diabetes; 2. discussing his "treatment" of numerous people with medically diagnosed illnesses, including children with leukemia and people on dialysis; 3. arranging meetings with people suffering from illnesses including cancer; and 4. sending people a copy of a paper entitled "A Cancer Killing Profile", directing them to relevant excerpts and discussing courses of treatment for cancer using cannabis oil and administering the same via syringes.
2. The applicant's real complaint is that his Honour went on, at 6(i) - 6(iii) of the remarks on sentence, to recite details of three occasions on which the applicant had given such advice. The Crown accepted that those details do not appear in the Statement of Agreed Facts which was tendered in the applicant's proceedings. Their source appears to be the Statement of Agreed Facts tendered in the proceedings involving co-offender Joseph Khoury.
3. The Crown accepted that there was no agreement, nor any order, permitting the Statement of Agreed Facts tendered in the proceedings involving Mr Khoury to be used in the applicant's case. To the contrary, the Crown Prosecutor drew the sentencing judge's attention to the fact that there were differences in the Statement of Agreed Facts tendered in the applicant's proceedings as compared with that tendered in the proceedings of Mr Khoury.
4. In addition, at 3 of the remarks on sentence, the sentencing judge made the following finding: "(16) During the execution of the search warrant, police seized a total of 540.92g (or .54092kg) of THC from the property. In addition, police seized a total of 20,311.5g (or 20.3115kg) of cannabis oil from the property."
5. The Crown accepted that this finding misstated the factual basis of the applicant's plea insofar as the quantities of the prohibited drugs were concerned, namely that 378g of cannabis resin (Count 2) and 394.6g of cannabis oil (Count 1) were seized.

Re-sentence

1. Error having been established, it is accordingly necessary to exercise the sentencing discretion afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]. With the exception of the erroneous findings I have described at [46]-[49] above, I will adopt the sentencing judge's remaining findings of fact for the purposes of resentencing: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32.
2. The applicant pleaded guilty, at a relatively late stage of the proceedings, to two counts of manufacturing a prohibited drug and should be afforded a 15% discount for the utilitarian value of his pleas. Each offence carries a maximum penalty of 15 years imprisonment and/or a fine of $220,000.
3. The applicant's submission that the conduct was "well within the low range" must be rejected. In particular, I do not accept that it was demonstrated that the conduct was "well within the low range" as the "offending took place in a context of increasing acceptance by Parliament and the community about the value of medicinal cannabis". The applicant is not a medical practitioner. The applicant was providing advice about the products he was selling that he was wholly unqualified to give. In relation to the two offences, each carrying a maximum penalty of 15 years imprisonment, an increasing acceptance by Parliament and the community "about the value of medicinal cannabis" is not a fact that warrants a finding that this offending was in the low range of objective seriousness. The ultimate submission made by the applicant was as follows: "BUTTON J: Some people historically have thought that LSD and other psychedelics are to be promulgated and are helpful and perhaps some people believe that other drugs [are helpful]. I mean Parliament has decided in its wisdom to prohibit these drugs, Mr Woods. What's the point to be made here if someone sets their face against that? WOODS: Yes, your Honour, I accept it's criminal behaviour and it was wrong. I will leave the submission at that but there's a context of some increasing acceptance about these types of products and I'll put it no higher than that."
4. I do not accept that the context identified by the applicant places this offending into the low range of objective seriousness.
5. The second matter relied upon by the applicant, "the absence of any indication of an opulent lifestyle", leads to no different conclusion. Whilst it is correct that there was no specific evidence warranting a finding that the applicant had an "opulent lifestyle", the money laundering matter the subject of the Form 1 provides a proper basis to conclude that the applicant's participation in the criminal conduct to which he pleaded guilty was not engaged in by reason of altruism alone.
6. I conclude that each offence fell just below the mid-range of objective seriousness. The indictable quantity for cannabis oil is 10 grams and the commercial quantity is 500 grams. [2] For cannabis resin, the indictable quantity is 90 grams and the commercial quantity is 2.5 kilograms. [3] In the case of the cannabis oil, the applicant manufactured 394.6 grams, a quantity within the top quartile of the amount punishable as an indictable quantity. In the case of cannabis resin, the applicant manufactured 378 grams, being over four times the indictable quantity.
7. I find, as did the sentencing judge, that the applicant's "criminality extended broadly across the manufacturing operation", from obtaining cannabis leaf for making the drug and executing the manufacturing processes, to touting the use of the drugs as treatment for serious illnesses without medical qualification. His role was "hands on and ongoing" over the course of two to three months.
8. I take into account the Form 1 offence of dealing with proceeds of crime, namely $21,935, in sentencing for count 1. It calls for an increase in the penalty that would otherwise be imposed for the offence to which it is attached.
9. The applicant acted upon a misguided belief that he is entitled to manufacture and distribute cannabis products to people with serious illnesses. Those beliefs, whilst no doubt sincerely held, and which the applicant continued to hold at the time of the sentence proceedings, indicate a need for personal deterrence and bear upon the applicant's prospects of rehabilitation and his risk of re-offending.
10. I make the same findings about the applicant's subjective case as were made by the sentencing judge. The applicant's history of prior convictions disentitles him to leniency. I accept that the applicant was subject to moderately onerous bail conditions for about two and a half years. The applicant's expressions of remorse came at a late stage in the proceedings and were in any event qualified by the misguided belief that he is entitled to manufacture and distribute cannabis products to people with serious illnesses. I adopt the sentencing judge's finding that the applicant's insight about his criminal conduct is "still evolving".
11. I find, as the sentencing judge recognised, that general deterrence and denunciation assume particular significance in this case where the applicant not only manufactured the cannabis oil and resin but gave medical advice to vulnerable people about the products as a treatment for various illnesses, in effect creating a market for his own product by providing advice that he was wholly unqualified to give.
12. I turn then to the appropriate sentence to be imposed.
13. Section 3A of the Sentencing Act is in the following terms: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows - (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.
14. Section 5(1) of the Sentencing Act is in the following terms: Penalties of imprisonment (1) A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.
15. Due to the seriousness of the offending, I find that no penalty other than imprisonment is appropriate and that the s 5 threshold of the Sentencing Act has been crossed with respect to both offences. I have also given consideration to the principles of proportionality and totality. I have been mindful to ensure that the aggregation of sentences reflects an appropriate measure of the total criminality involved. It is agreed by the parties that no issue of parity arises in this matter. I make the same finding of special circumstances as the sentencing judge.
16. I must then consider whether an alternative to full-time custody is appropriate, namely, an ICO.
17. Part 5 of the Sentencing Act, which governs the imposition of an ICO, includes s 66 which I have set out at [36] above.
18. In Kember, Bellew J, with whom Simpson AJA and Wilson J agreed, said: "[39] There is no doubt that when considering the imposition of an ICO, a sentencing judge must follow a three step process. The first step is to determine, pursuant to s 5 of the Sentencing Act, that no penalty other than imprisonment is appropriate. The second step is to determine the length of the sentence. The third and critical step is to determine whether the sentence should be served by way of an ICO [R v Fangaloka [2019] NSWCCA 173 at [44]-[45] per Basten JA, Johnson and Price JJ agreeing]. [40] In taking the third step, and although s 66 mandates (inter alia) that community safety is the paramount consideration, a sentencing judge must weigh and assess that consideration against the entirety of the facts, matters and circumstances which are relevant to the sentencing task, applying the instinctive synthesis approach [Blanch v R [2019] NSWCCA 304 at [51] per Campbell J, Hoeben CJ at CL and Price J agreeing]."
19. The matters which are relevant to the sentencing task here do not persuade me that an ICO should be imposed. The two offences were serious. A consideration of all relevant factors leads me to conclude that the seriousness of the offending demands the imposition of a full-time custodial sentence. An ICO would fail adequately to reflect the objective seriousness of the offences and the need for both deterrence and denunciation. I conclude that in this case full-time custody, not an ICO, is more likely to address the applicant's risk of re-offending, having regard to the need for personal deterrence and the still evolving insight of the applicant about his criminal conduct. In this case, as in Fangaloka at [68], in assessing "community safety" there was no evidence to support the view that one form of imprisonment was more likely to reduce the risk of re-offending than another.
20. I have concluded that on the facts of this case no lesser sentence is warranted in law and would therefore dismiss the appeal: s 6(3), Criminal Appeal Act 1912. The appeal against sentence should be dismissed.

Conclusion and Orders

1. For the foregoing reasons I propose the following orders: 1. Leave to appeal against sentence granted; 2. Appeal dismissed.
2. BELLEW J: I agree with Payne JA.
3. BUTTON J: I agree with Payne JA.

Endnotes

1. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017 at 273.
2. Drug Misuse and Trafficking Act 1985 (NSW), Sch 1.
3. Drug Misuse and Trafficking Act 1985 (NSW), Sch 1. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 April 2021