Chan v R

Mandranis v R (2021) 289 A Crim R 260; [2021] NSWCCA 97 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Mourtada v The Queen (2021) 290 A Crim R 514; [2021] NSWCCA 211 Patel v R (2022) 366 FLR 314; [2022] NSWCCA 93 Putland v The Queen (2014) 218 CLR 174; [2014] HCA 8 R v Agius; R v Zerafa (2012) 87 ATR 528; [2012] NSWSC 978 R v Boughen; R v Cameron (2012) 215 A Crim R 476; [2012] NSWCCA 17 R v Pogson; R v Lapham; R v Martin (2012) 218 A Crim R 396; [2012] NSWCCA 225 R v Pullen (2018) 275 A Crim R 509; [2018] NSWCCA 264 Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23 Stanley v Director of Public Prosecutions (NSW) (2021) 107 NSWLR 1; [2021] NSWCA 337 Stanley v Director of Public Prosecutions (NSW) (2023) 97 ALJR 107; [2023] HCA 3 The Queen v Gorgy (NSWDC 17 April 1998, unreported) Tonga, Samuel v R [2023] NSWCCA 120 Waterstone v R [2020] NSWCCA 117 Williams v The King [No 2] (1934) 50 CLR 551; [1934] HCA 19 Zheng v R [2023] NSWCCA 64 Texts Cited: Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW) New South Wales, Parliamentary Debates, Legislative Assembly, 11 October 2017, Mark Speakman Category: Principal judgment Parties: Felix Yue-Sing Chan (Applicant) Rex (Respondent) Representation: Counsel: D Jordan SC with C O'Neill (Applicant) R Ranken with E Forsyth (Respondent)

Solicitors: Aulich Criminal Law (Applicant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2021/0039773 Publication restriction: Nil. Decision under appeal Court or tribunal: Queanbeyan District Court Jurisdiction: Criminal Date of Decision: 10 November 2022 Before: Bright DCJ File Number(s): 2021/00309773

HEADNOTE [This headnote is not to be read as part of the judgment] On 10 November 2022, the applicant was sentenced in relation to three offences under s 103(5)(g) of the National Health Act 1953 (Cth) for making false claims on the Pharmaceutical Benefits Scheme for prescriptions that he had not dispensed. He received an aggregate sentence of 2 years imprisonment and was ordered to be released on a Recognizance Release Order after serving 14 months of his sentence. The sentencing judge found that a term of imprisonment was warranted and declined to impose an Intensive Correction Order (ICO). The sentencing judge was satisfied that the applicant was remorseful, had good prospects of rehabilitation and was unlikely to reoffend: [66]. Her Honour gave the following reasons for declining to impose an ICO (at [69]): "I note that because I am dealing with a Commonwealth offence, I have taken into account the s 16A matters rather than the s 3A matters. Whilst I am satisfied that the offender's risk of reoffending would be better addressed by serving a sentence as an Intensive Correction Order, I consider that only a full‑time custodial sentence can address the need for punishment, denunciation, and fulfil the very strong need for general deterrence." The applicant sought leave to appeal against his sentence on the following three grounds: Ground 1: In determining whether to impose an intensive correction order her Honour did not consider the provisions of s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Ground 2: In determining whether to impose an intensive correction order her Honour did not take into account community safety as the paramount consideration. Ground 3: The sentence was manifestly excessive. The court (Kirk JA, Rothman and N Adams JJ) upheld ground 1 and re-sentenced the applicant. N Adams J would have also upheld ground 2, but Kirk JA and Rothman J did not consider it necessary to determine that ground. The court held: In respect of ground 1 1. Section 20AB of the Crimes Act 1914 (Cth) picks up the power to impose an ICO for federal offences and the procedural steps governing the operation of the State provision: [2]-[6] per Kirk JA; [96] per N Adams J (Rothman J agreeing at [11]). Mourtada v The Queen (2021) 290 A Crim R 514; [2021] NSWCCA 21 at [20] and [35]; Homewood v R [2023] NSWCCA 159 at [4]. 1. There is a three-step approach to considering whether to impose an ICO: first, the court must be satisfied that no penalty other than imprisonment is appropriate; then if so, it must determine the length of the sentence; and finally, if the sentence imposed is less than two years for a single offence or three years for an aggregate sentence, the court must consider whether an ICO should be imposed: [79] per N Adams J (Kirk JA agreeing at [1]; Rothman J agreeing at [11]). Stanley v Director of Public Prosecutions (NSW) (2023) 97 ALJR 107; [2023] HCA 3 at [59]. 1. The sentencing judge was required to have regard to s 16A of the Crimes Act for the purposes of the first two steps, but then have regard to the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure Act) 1999 (NSW) when considering whether to impose an ICO: [6]-[7] per Kirk JA; [101] per N Adams J (Rothman J agreeing at [11]). Her Honour made a material error in considering the s 16A factors instead of the s 3A factors at this third step: [9] per Kirk JA; [19] per Rothman J; [101], [103]-[104], [108]-[109] and [115]-[116] per N Adams J. Stanley v Director of Public Prosecutions (NSW) (2023) 97 ALJR 107; [2023] HCA 3, Benn v R [2023] NSWCCA 24 at [82], Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42], Newman (a pseudonym) v R [2019] NSWCCA 157 at [11], Ibbotson (a pseudonym) v R [2020] NSWCCA 92 at [145]. In respect of ground 2 1. Section 66(1) of the Sentencing Act requires the court to treat community safety as the 'paramount consideration' in deciding whether to impose an ICO: [80]-[81] per N Adams J. While the assessment of community safety required by s 66(2) is not determinative, community safety will usually have a decisive effect on the decision to make, or refuse to make, an ICO, unless the relevant evidence is inconclusive: [129] per N Adams J. Stanley v Director of Public Prosecutions (NSW) (2023) 97 ALJR 107; [2023] HCA 3 at [75]-[76]. 1. "Community safety" principally concerns the possible harms, including non-violent harms, to the community that might occur in the future from the risk of reoffending by the offender: [146] per N Adams J. Stanley v Director of Public Prosecutions (NSW) (2023) 97 ALJR 107; [2023] HCA 3 at [72]. 1. The sentencing judge made a positive finding about community safety in s 66(2), however her Honour failed to state that she was giving it paramount consideration or to disclose why she was satisfied that other sentencing principles were more important: [147] per N Adams J. This leaves open the inference that she did not have regard to it in the manner required by s 66(1): [148] per N Adams J. On re-sentence 1. The ICO cannot be backdated per s 71 of the Crimes (Sentencing Procedure) Act. The term of the ICO can be adjusted by deducting a period equivalent to the term of the pre-sentence custody: [161] per N Adams J (Kirk JA agreeing at [10]; Rothman J agreeing at [14]). Mandranis v R (2021) 289 A Crim R 260; [2021] NSWCCA 97 at [61]. 1. The applicant is sentenced to an aggregate sentence of 8 months and 17 days imprisonment to be served by way of an ICO subject to the standard conditions: [166] per N Adams J (Kirk JA agreeing at [10]). Exceptional circumstances are found: [164] N Adams J (Kirk JA agreeing at [10]; Rothman J agreeing at [14]).

JUDGMENT

1. KIRK JA: The circumstances of this application for leave to appeal on sentence are set out in the judgment of N Adams J. I agree with the orders proposed by her Honour. I also agree with her Honour's reasons as to ground 1, subject to what follows.
2. Sentencing for federal offences such as those at issue here is governed by Pt 1B of the Crimes Act 1914 (Cth). That Part does not create its own regime for intensive corrections orders (ICOs). However, s 20AB, which is headed "[a]dditional sentencing alternatives", provides that in identified circumstances a court may make an ICO where, amongst other things, "under the law of the State or Territory, a court is empowered to pass such a sentence, or make such an order, in respect of a State or Territory offender in corresponding cases" (quoting s 20AB(1)(b)). The term "corresponding cases" was not the subject of submissions in this case and there was no dispute that the section meant that an ICO was an available sentencing option here.
3. Section 20AB(3) provides as follows: Where a sentence or order referred to in subsection (1) is passed or made under that subsection in respect of a person convicted in a State or Territory of a federal offence, the provisions of the laws of the State or Territory with respect to such a sentence or order that is passed or made under those laws shall, so far as those provisions are capable of application and are not inconsistent with the laws of the Commonwealth, apply, by virtue of this subsection, to and in relation to the sentence or order passed or made under subsection (1).
4. The notion that the State or Territory provisions are to apply "so far as those provisions are capable of application and are not inconsistent with the laws of the Commonwealth" echoes similar notions in ss 68(1) and 79(2) of the Judiciary Act 1903 (Cth). This type of federal provision picks up the State provisions and applies them as federal law to the identified extent: note Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23 at [81] (addressing s 79(2)). Importantly, it does so without altering the essential meaning of the State provision: ibid; Attorney-General (Cth) v Huynh (2023) 97 ALJR 298; [2023] HCA 13 at [57], [151], [237], [269] (addressing s 68(1)).
5. That being said, because a provision from one polity is picked up and applied under the laws of another, the adoption of that law "must proceed by analogy": Williams v The King [No 2] (1934) 50 CLR 551 at 561, [1934] HCA 19; Huynh at [59]-[64], [152], [269]. Thus, for example, where a State provision gave a right to appeal to the Attorney-General - referring to the State Attorney - when this was picked up by s 68(2) as regards a federal offence it was read as giving such a right of appeal to the Commonwealth Attorney: ibid. In other words, the provision picked up may require some degree of translation to operate in the federal sphere, although if the "degree of translation required is too great" then it cannot be picked up: Huynh at [152].

Factual background

1. Agreed facts were tendered on sentence.
2. The applicant submitted the 105 fraudulent claims between 31 January 2018 and 27 July 2020. He falsely stated that various medical practitioners had supplied 1,070 pharmaceuticals to patients when they had not. The names of real doctors and patients were used.
3. By way of background, each time a pharmacist dispenses a medication, they enter it into their prescription dispensing software. At the end of the month, they certify that all the details entered into the software are correct and send a claim to Services Australia for payment. Once Services Australia has received the prescription details, the PBS assessing engine indicates whether the medication supplied can or cannot be claimed.
4. At the end of a claim period, which is up to 35 days from the date of supply, the approved supplier is required to close the claim period through their prescription dispensing software and send through the closed claims transactions to Services Australia. When closing a claim, the approved supplier must certify that each pharmaceutical benefit claimed is in accordance with the legislation and the information is correct. The software warns the approved supplier that giving false or misleading information is a serious offence, and they must sign to certify the correctness of the claim before submission.

Ginninderra Pharmacy

1. The applicant was the sole trader of Ginninderra Pharmacy. From 1 October 2009 to at least 24 November 2020, he was the only approved person for the supply of pharmaceutical benefits at that pharmacy. He lodged or caused to be lodged 30 fraudulent PBS claims containing false statements in relation to 466 items that were not supplied. The claims were submitted for payment, causing $111,229.32 to be paid into a Bankwest bank account in the name of "Felix Yue-Sing Chan TAS Ginninderra Pharmacy".

Priceline Pharmacy Queanbeyan

1. The applicant was the sole trader of Abundant QBN Pty Ltd which was the only "approved person" for the supply of pharmaceutical benefits from Priceline Pharmacy Queanbeyan. The applicant on 46 occasions lodged or caused to be lodged fraudulent PBS claims containing false statements in relation to 380 items that were not supplied. The claims were submitted for payment, causing $114,553.21 to be paid into a National Australia Bank ("NAB") bank account in the name of "Abundant QBN Pty Ltd".

Priceline Pharmacy Bungendore

1. The applicant was the sole trader of Abundant Health Care Pty Ltd which was the only "approved person" for the supply of pharmaceutical benefits from Priceline Pharmacy Bungendore. As the sole trader, the applicant on 29 occasions lodged or caused to be lodged fraudulent PBS claims containing false statements in relation to 224 items that were not supplied. The claims were submitted for payment, causing $62,813.03 to be paid into a NAB bank account in the name of "Abundant Health Care Pty Ltd".

The investigation

1. In 2020, an investigation was commenced into the applicant's claims on the PBS. It emerged that doctors whose unique prescriber details had been used by the applicant to make a claim under the PBS had not in fact written scripts for some of the medication that the applicant said he had dispensed.
2. On 2 November 2020, the applicant was invited to attend a voluntary interview in relation to the allegations. The interview took place on 24 November 2020. During the interview, the applicant provided considerable assistance to investigating officials and admitted that he was the controlling mind of both companies that are the approved pharmacists for the Queanbeyan and Bungendore pharmacies. He admitted to claiming payments from the PBS without supplying the corresponding pharmaceutical benefits and made further voluntary admissions to additional false claims that the Department of Health ("the Department") had not otherwise been aware of.
3. The applicant made voluntary admissions as to 60% of the total amount charged broken up as follows: $88,174.85 of the $111,229.32 claims in respect of the Ginninderra Pharmacy; $65,336.20 of the $114,553.21 in respect of Priceline Pharmacy Queanbeyan; and $24,444.89 of the $62,813.03 claims in respect of Priceline Pharmacy Bungendore.
4. The applicant told investigators that financial difficulties and stresses concerning his three pharmacies were the primary reasons he "took matters into his own hands". Specifically, he said that the 2020 bushfires nearly threatened Priceline Pharmacy Bungendore, both Ginninderra Pharmacy and Priceline Pharmacy Queanbeyan were suffering financially before the COVID-19 pandemic, increased competition from large competitors around Ginninderra Pharmacy had caused financial suffering, and Priceline Pharmacy Queanbeyan had declined in market value to the tune of $1 million whereby NAB (his bankers) threatened to recall the business loan. Despite this, the applicant acknowledged that "[t]here is absolutely no excuse for any wrongdoing, no matter what circumstances are and how tough things are".
5. During the interview, the applicant indicated he was "hundred per cent committed to willingly provide the department with a genuine account of a full list of known non-supplied items by [him]". He also said he was willing to pay back the Department for all PBS transactions determined to be non-supplied dispensed items.

Proceedings on sentence

1. Proceedings on sentence were conducted on 10 November 2020.
2. A Crown bundle was tendered compromising of the Court Attendance Notices, a Notice of Committal, an Agreed Statement of Facts, a Sentencing Assessment Report, Crown written submissions on sentence, a comparative sentencing schedule, and copies of comparative cases. The sentencing judge indicated she had already read material before court.
3. The applicant did not give evidence during sentence proceedings. Counsel for the applicant tendered a bundle comprising of a report by psychologist Patrick Sheehan dated 26 October 2022; references from customers and friends Yunhong Du, Mourad Karas, Kate McAllister, Greg Roberts, Frank Shugg and Beverley Clark; and a letter from Aulich Criminal Law to the Health Care Complaints Commission dated 27 September 2022.

Sentencing submissions

1. The Crown relied on written submissions supplemented by further oral submissions. The Crown's position was that full-time imprisonment was the only appropriate sentence in all the circumstances.
2. The applicant relied on the following favourable subjective factors: he had voluntarily ceased offending; he made prompt and comprehensive admissions and provided substantial assistance to investigators; he repaid the amount of the false claims in full; and he is a person of good character with a history of positive community engagement. It was submitted that the 2-year maximum prescribed penalty was an important yardstick and that the current offending could not be considered worst case. It was accepted that the offences are serious and that general deterrence is an important sentencing factor, but it was submitted that having regard to the applicant's compelling subjective case, the court would not be satisfied that no penalty other than imprisonment is appropriate and instead would sentence the applicant to a RRO or a CCO. In the alternative, counsel for the applicant submitted that the court could impose an ICO.
3. Written submissions on sentence were also provided, which included the following submission: "In the event the Court is considering an ICO, having regard to these matters it appears likely that rehabilitation and, therefore, community safety as it is used in s 66 of the CSP ACT, is best achieved by positive behavioural change which, for Mr Chan, is more likely to occur with supervision and access to treatment programs in the community (see R v Pullen [2018] NSWCCA 264 at [84])."

Remarks on sentence

1. After setting out the agreed facts as summarised above, the sentencing judge observed the following: "Those facts clearly disclose serious objective criminality. The offender was engaged in a very lengthy course of conduct and made claims on 105 separate occasions involving 1,070 items to obtain total payments of $288,595.56. This amount was government funds to which the offender was not entitled. The false statements made included the offender using the prescribed numbers of real doctors and the real names of patients. As observed by his Honour Judge Davidson in The Queen v Gorgy (NSWDC 17 April 1998, unreported), it is highly relevant to the sentencing exercise that an approved pharmacist under the Pharmaceutical Benefits Scheme is in a position analogous to a position of trust. His Honour observed as follows at 8: 'if schemes in the public interest such as these are to be successfully administered for the benefit of the community as a whole, the Commonwealth must of necessity place its trust in the person who are likely to benefit commercially from them.' His Honour further observed as follows at 8: 'schemes of this sort are so detailed in the way that they are administered and involve so many instances of claims and payments for claims that it is quite impossible to institute a completely secure system for their oversight.' In such circumstances, the Commonwealth relies heavily upon the integrity of those making claims under the system. General deterrence is a very important consideration on sentences. Sentences must be imposed to deter like‑minded members of the community from offending in this way." (Emphasis added.)
2. Her Honour went on to consider the subjective material tendered on the applicant's behalf. The applicant was born in Hong Kong. He moved to Brisbane when he was 11 years of age. He reported a conventional but strict childhood and his parents had high expectations for him. He completed his Higher School Certificate and then a Bachelor of Pharmacy at James Cook University in Townsville in 2003. He became a fully registered pharmacist in 2004. He managed pharmacies in Lismore and Sydney until 2009 when he purchased his own pharmacy in the ACT.
3. The applicant suffers long-term asthma and psoriasis for which he is prescribed medication. His skin condition fluctuates in accordance with stress. He reported weight loss over the past 18 months.

Intensive Correction Orders

1. Grounds 1 and 2 concern the sentencing judge's consideration of s 66 of the Sentencing Act. Before turning to consider the submissions, it is helpful to first set out the statutory regime for ICOs and the principles derived from the relevant decisions. Although the option to impose an ICO on a person sentenced to a period of imprisonment has been available since 2010, it has only been since 2018 that in doing so "community safety" is the paramount consideration.
2. The power to make an ICO is contained in s 7 of the Sentencing Act, which relevantly provides: 7 Intensive correction orders (1) A court that has sentenced an offender to imprisonment in respect of 1 or more offences may make an intensive correction order directing that the sentence or sentences be served by way of intensive correction in the community. (2) If the court makes an intensive correction order directing that a sentence of imprisonment be served by way of intensive correction in the community, the court is not to set a non-parole period for the sentence. (3) This section does not apply to an offender who is under the age of 18 years. (4) This section is subject to the provisions of Part 5. Note - Among other matters, Part 5 provides that a single offence cannot be the subject of an intensive correction order if the imprisonment imposed exceeds 2 years, and that multiple offences cannot be the subject of an intensive correction order or orders if the imprisonment imposed exceeds 3 years.
3. The determination of this ground turns on the requirements of s 66 (in Pt 5, Div 2 comprising ss 66-69) which is headed "Community safety and other considerations". Section 66 was amended by the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW), which took effect from 24 September 2018 and is in these terms: (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.

Crimes Act 1914 (Cth)

1. The applicant stood for sentence on offences against the Commonwealth and, thus, was to be sentenced in accordance with the provisions of Pt 1B of the Crimes Act. Section 16A of the Crimes Act provides for the matters a court is to have regard to when passing a sentence for federal offences. Section 16A(1) provides that a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. Section 16A(2) is in these terms: (2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court: (a) the nature and circumstances of the offence; (b) other offences (if any) that are required or permitted to be taken into account; (c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character--that course of conduct; (d) the personal circumstances of any victim of the offence; (e) any injury, loss or damage resulting from the offence; (ea) if an individual who is a victim of the offence has suffered harm as a result of the offence - any victim impact statement for the victim; (f) the degree to which the person has shown contrition for the offence: (i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or (ii) in any other manner; (fa) the extent to which the person has failed to comply with: (i) any order under subsection 23CD(1) of the Federal Court of Australia Act 1976; or (ii) any obligation under a law of the Commonwealth; or (iii) any obligation under a law of the State or Territory applying under subsection 68(1) of the Judiciary Act 1903; about pre-trial disclosure, or ongoing disclosure, in proceedings relating to the offence; (g) if the person has pleaded guilty to the charge in respect of the offence: (i) that fact; and (ii) the timing of the plea; and (iii) the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence; (h) the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences; (j) the deterrent effect that any sentence or order under consideration may have on the person; (ja) the deterrent effect that any sentence or order under consideration may have on other persons; (k) the need to ensure that the person is adequately punished for the offence; (m) the character, antecedents, age, means and physical or mental condition of the person; (ma) if the person's standing in the community was used by the person to aid in the commission of the offence--that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates; (n) the prospect of rehabilitation of the person; (p) the probable effect that any sentence or order under consideration would have on any of the person's family or dependants.

Ground 1: In determining whether to impose an intensive correction order her Honour did not consider the provisions of s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Applicant's submissions

1. The nub of the complaint under this ground is that the sentencing judge failed to consider the purposes of sentencing specified in s 3A of the Sentencing Act despite these being mandatory considerations pursuant to s 66(3) of that Act. Rather, her Honour took into account the considerations in s 16A of the Crimes Act. One of the consequences of this, it was submitted, is that some purposes were elevated without regard to all of the purposes listed in s 3A of the Sentencing Act. Moreover, her Honour did not have regard to the purposes of sentencing not listed in s 16A of the Crimes Act but included in s 3A of the Sentencing Act.
2. The applicant submitted that it would have been apparent that accountability, denunciation and recognition of harm could properly be met in the circumstances of this case by a sentence of imprisonment which did not preclude the making of an ICO and that the protection of the community and promotion of the applicant's rehabilitation would have been better facilitated by the imposition of an ICO.
3. It was submitted at the hearing of this appeal that the most beneficial interpretation of her Honour's reference to "the s 16A matters" in the context of her consideration of an ICO is that her Honour at least had regard to those s 16A matters which related to the purposes of sentencing which were analogous to the purposes in s 3A of the Sentencing Act.
4. It was further submitted that her Honour's reference to s 16A of the Crimes Act (rather than s 3A of the Sentencing Act) had the capacity to impact on the result in this matter and was, thus, a material error. One example of this was the different wording in relation to "rehabilitation" in each Act. A specific submission was put to the sentencing judge on the issue of rehabilitation which was not referred to by the sentencing judge when she was considering whether to impose an ICO. It is submitted that had her Honour had regard to s 3A rather than s 16A, the consideration of rehabilitation would have militated in favour of the granting of an ICO.

Crown submissions

1. The Crown accepted that her Honour should have stated that she was having regard to s 3A rather than s 16A factors but that a number of the matters identified in s 16A(2) of the Crimes Act are comparable to those in s 3A in any event. It was submitted that a fair reading of her Honour's reasons show that her Honour did in fact have regard to a number of matters referred to in s 3A of the Sentencing Act in the course of her instinctive synthesis. In particular, her Honour had regard to specific deterrence, general deterrence, prospects of rehabilitation and recognition of the harm to the community at various stages throughout her reasons.
2. To the extent that the applicant's complaint focused upon the words immediately following where the sentencing judge set out s 66 of the Sentencing Act, the Crown placed reliance upon the fact that the reasons were delivered ex tempore. It was submitted that while her Honour could have expressed herself differently, it is open to this Court to comprehend her Honour's reasons to mean that when conducting the exercise required by s 66(3) of the Sentencing Act her Honour had considered those matters already. It was submitted that her Honour was not intending to convey that she did so to the exclusion of s 3A matters.
3. It was further noted that her Honour's express reference to the need for denunciation reflects s 3A of the Sentencing Act and is not a factor in s 16A(2) of the Crimes Act. To the extent that the applicant asserts that the sentencing judge failed to indicate which of the s 16A/s 3A matters her Honour had taken into account, reliance was placed upon the decision of Adamson J (as her Honour then was) in Mourtada v the Queen at [37]-[38]. It was submitted that there is no such requirement.
4. Ultimately, it was submitted that the sentencing judge was cognisant of the wording of s 66 (as she extracted it in her reasons) and then went on to expressly mention three of those purposes.
5. It was submitted that the fact that her Honour expressly referred to the need for punishment, denunciation and general deterrence does not mean that she failed to have regard to the other purposes of sentencing. As for the issue of protecting the community, it was submitted that that is a matter closely related to the risk of reoffending. Her Honour expressly found the consequences of the applicant's offending would deter him from any future offending and that he was unlikely to reoffend. In any event, her Honour addressed the issue of community safety under s 66(2) expressly in her reasons.

Consideration: Ground 1

1. Although the sentencing judge was required to sentence the applicant under the Crimes Act (and to have regard to s 16A in doing so), she was also asked to impose an aggregate sentence on the applicant and to consider the imposition of an ICO, both of which required her Honour to apply NSW law.
2. Her Honour imposed an aggregate sentence under s 53A of the Sentencing Act. That provision was picked up and applied as federal law in relation to the applicant's sentence only insofar as it was "applicable": s 68(1) of the Judiciary Act 1903 (Cth). As Beech-Jones J (as his Honour then was), with whom Bathurst CJ and I agreed, observed in Huynh v R (2021) 105 NSWLR 384; [2021] NSWCCA 148 regarding the meaning of the words "so far as they are applicable" in s 68(1) (at [39]): "In relation to the exercise of powers conferred by State law, although s 68(1) and s 79(1) of the Judiciary Act 1903 contain different phrases concerning what State laws are picked up and applied in that s 68(1) refers to such laws 'so far as they are applicable' and s 79 refers to such laws as 'are applicable' but 'except as otherwise provided', in Putland at [7], it was observed that there exists 'little, if any, functional difference' between these two forms of qualification."
3. The application of s 68(1) of the Judiciary Act was recently considered by the High Court in Attorney-General (Cth) v Huynh (2023) 97 ALJR 298; [2023] HCA 13. As for the similarity between s 68(1) and s 79(1), Kiefel CJ, Gageler and Gleeson JJ observed the following at [41] (footnote omitted): "Section 68(1)'s application of certain State and Territory laws 'so far as they are applicable' to persons charged with offences against Commonwealth laws in respect of whom jurisdiction is invested in State and Territory courts under s 68(2) has features in common with the prescription in s 79(1) of the Judiciary Act that certain State and Territory laws are binding on courts exercising federal jurisdiction 'except as otherwise provided by the Constitution or the laws of the Commonwealth ... in all cases to which they are applicable'. There is a substantial degree of overlap in the purposes and operations of the two provisions in so far as both 'enable State [and Territory] courts in the exercise of federal jurisdiction to apply federal laws according to a common procedure in one judicial system'." (Although t heir Honours went on at [42] to observe there are important differences between ss 68(1) and 79(1), those differences are not presently relevant).

Ground 2: In determining whether to impose an intensive correction order her Honour did not take into account community safety as the paramount consideration.

Applicant's submissions

1. The applicant submitted that the need for punishment, denunciation and general deterrence did not displace the paramount consideration of community safety (under s 66(1) of the Sentencing Act) and could be met by convictions and the imposition of a term of imprisonment to be served by way of an ICO.
2. It was submitted that while her Honour set out the terms of s 66 of the Sentencing Act and was satisfied that the applicant's risk of reoffending would be better addressed by serving a sentence as an ICO, her Honour gave no consideration to community safety in her assessment of the reoffending risk, nor by reference to the range of conditions that could have been imposed as part of an ICO. Instead, her Honour proceeded directly to s 66(3) and determined to impose a full-time custodial sentence on the basis that "only a full-time custodial sentence can address the need for punishment, denunciation, and fulfil the very strong need for general deterrence".
3. The complaint was made that her Honour made no finding in relation to the paramount consideration of community safety and, thus, s 66(1) was bypassed. The applicant submitted that her Honour's approach subordinated the paramount consideration of community safety and was a material error that went directly to the determination not to impose an ICO.
4. It was submitted that it was open to reason (in accordance with Stanley) that an ICO is more likely to address community safety in terms of the applicant's risk of reoffending. Although general deterrence is a matter attracting significant weight, an ICO should properly be regarded as a custodial sentence. Accordingly, it was submitted, that the paramount consideration of community safety could have been met by convictions and the imposition of a term of imprisonment to be served by way of ICO.

Crown submissions

1. The Crown relied upon her Honour's express reference to the language of s 66(2) in her reasons and submitted that it could not be said that her Honour failed to have regard to the paramount consideration of community. Her Honour went on to engage in the evaluative exercise required by s 66(3) when she concluded that only a full-time custodial sentence could address the need for punishment, denunciation and to fulfil the very strong need for general deterrence.
2. It was submitted that the paramount consideration in s 66(1) could not require the imposition of a sentence or order that her Honour did not, in her instinctive synthesis, consider was of a severity appropriate in all the circumstances of the offence. Her Honour was evidently of the view that the imposition of an ICO was not of appropriate severity. In those circumstances, the making of such an order would have been inconsistent with her Honour's primary obligation in s 16A(1) of the Crimes Act and would exceed the express limitation in s 20AB(3).
3. It was submitted that it was within her Honour's sentencing discretion to find that the need for punishment, denunciation and general deterrence displaced the paramount consideration of community safety. Reliance was placed on the decision of Fangaloka v R at [65]-[66] (considered below).

Consideration: Ground 2

1. I have already considered the scope of s 66 for the purposes of ground 1. But whereas ground 1 was concerned with s 66(3), ground 2 is concerned with her Honour's consideration of s 66(1).
2. The complaint under this ground is not that the sentencing judge failed to have regard to community safety at all; it was accepted that her Honour expressly engaged with s 66(2) and was satisfied that the applicant's risk of reoffending would be better addressed by serving his sentence by way of an ICO. Rather, the complaint is that although her Honour undertook the assessment required in s 66(2), she failed to expressly address s 66(1). The question is whether, as the Crown contended, the reference to the language of s 66(2) was sufficient to establish that her Honour gave community safety paramount consideration in determining whether to impose an ICO for the purposes of s 66(1).
3. At [74] of Stanley, their Honours stated that s 66(2) "explains how the sentencing court must engage with the paramount consideration of community safety". Similarly, at [77] their Honours stated: "[a]t this third step, community safety in s 66(1) is given its principal content by s 66(2)". These observations by the High Court suggest that the requirement in s 66(2) is only part of the court's requirement to make community safety the paramount consideration in s 66(1). As Simpson JA observed in Mandranis v R at [51], "[t]he better way of addressing an offender's risk of reoffending [in s 66(2)] is but one of the considerations that contribute to the s 66(1) assessment."
4. I am not persuaded that the fact that her Honour made the relevant assessment under s 66(2) is a complete answer to the question of whether her Honour also complied with s 66(1) and considered community safety to be the paramount consideration when deciding not to impose an ICO. The Crown's remaining submissions under this ground turned, to some extent, on the correctness of her Honour's decision not to impose an ICO and the significance of the need for punishment, denunciation and general deterrence in this matter.
5. As the majority judgment in Stanley observed at [73], when the court is deciding the discrete question of whether to make an ICO, other considerations must be subordinated to the consideration of community safety, but they must (or may) still be taken into account as prescribed by s 66(3). Significantly, despite the majority in Stanley stating at [75] that the assessment required by s 66(2) is not determinative of whether an ICO may or should be made, their Honours went on to observe at [76] that "community safety will usually have a decisive effect on the decision to make, or refuse to make, an ICO, unless the relevant evidence is inconclusive" (emphasis added).

Re-sentence

1. Since error has been found in relation to grounds 1 and 4, it is necessary for this Court to exercise its own independent sentencing discretion for the purpose of determining whether a lesser sentence should be imposed under s 6(3) Criminal Appeal Act 1912 (NSW): Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [43]. In light of the need to re-sentence, it is not necessary to consider ground 3, which alleged that the sentence is manifestly excessive. Despite this, I will consider the parties' submissions in relation to manifest excess as part of the re-sentencing.
2. The applicant provided an affidavit dated 5 June 2023 outlining his experience and behaviour in custody. He wrote that he has been well behaved, has not breached any disciplinary rules and has worked at every opportunity, including as a kitchen hand, picking apples and now as a senior clerk for the farm. He has taken two available courses and is enrolled in two more. He was unable to do any formal vocational education as he was told he was over-qualified. He tries to speak to his wife daily on the phone, and his wife and his 12-year-old son visit during school holidays and on long weekends.
3. This material confirms the material before the sentencing judge: the applicant has excellent prospects of rehabilitation.
4. The applicant's legal representative, Mr Woodhouse, also provided two affidavits dated 5 June 2023 and 23 June 2023. The applicant's atopic dermatitis and asthma both worsened when he entered custody and he had to be taken to hospital for his asthmatic condition on 30 December 2022. The applicant now receives his prescribed medication.
5. I have already set out the objective and subjective factors relevant to the re-sentencing of the applicant above. I adopt the findings of the sentencing judge. It was not submitted that I would do otherwise.
6. I too am satisfied that a sentence of imprisonment was warranted, but in the exercise of my sentencing discretion I would have imposed a different aggregate sentence.
7. The applicant is to be sentenced for three offences which carry a maximum penalty of only 2 years imprisonment. I have arrived at an aggregate sentence of 18 months with indicative sentences as follows (applying the 25% discount to the indicative sentences): 1. Seq. 2: 10 months imprisonment 2. Seq. 3: 10 months imprisonment 3. Seq. 4: 9 months imprisonment

Endnotes

1. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ); [1996] HCA 6, citing with approval Collector of Customers v Pozzolanic (1993) 43 FCR 280 at 287; [1993] FCA 456.
2. Ibid. 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: 23 August 2023