[2014] HCA 37
Mandranis v R (2021) 289 A Crim R 260
[2021] NSWCCA 97
Mourtada v The Queen [2021] NSWCCA 211
(2021) 290 A Crim R 514
R v Pogson (2012) 82 NSWLR 60
[2012] NSWCCA 225
R v Togias (2001) 127 A Crim R 23
Source
Original judgment source is linked above.
Catchwords
[2014] HCA 37
Mandranis v R (2021) 289 A Crim R 260[2021] NSWCCA 97
Mourtada v The Queen [2021] NSWCCA 211(2021) 290 A Crim R 514
R v Pogson (2012) 82 NSWLR 60[2012] NSWCCA 225
R v Togias (2001) 127 A Crim R 23[2001] NSWCCA 522
Stanley v Director of Public Prosecutions (NSW) (2023) 97 ALJR 107[2023] HCA 3
The Queen v Kilic (2016) 259 CLR 256
Judgment (8 paragraphs)
[1]
The application for an ICO
Senior counsel for the applicant at the sentence hearing, who also appeared on this application for leave, submitted to the sentencing judge that an ICO was an available option for the terrorism offence. Although s 67(1)(c) of the CSP Act precluded the making of an ICO in respect of "a terrorism offence within the meaning of the Crimes Act 1914 of the Commonwealth", the definition of the term "terrorism offence" for the purposes of the Crimes Act 1914, which is in s 3 of that Act, did not include an offence against s 80.2C of the Criminal Code. Senior counsel submitted that although s 68(1) of the CSP Act prohibits the imposition of an ICO for a single offence for which a sentence of imprisonment of more than 2 years is imposed, there is authority of this Court to the effect that periods of pre-sentence custody may be deducted from the term of the ICO to be imposed, which, pursuant to s 71(1) of the CSP Act, must commence on the date on which it is made: Mandranis v R (2021) 289 A Crim R 260; [2021] NSWCCA 97 at [61].
At the sentence hearing, the Crown opposed the imposition of an ICO on two bases. The first, which it described as its "primary position", was that the objective seriousness of the offence precluded its consideration. The second basis related to the terms of s 20AB of the Crimes Act 1914, which is relevantly as follows:
"20AB Additional sentencing alternatives
(1) A court may pass a sentence, or make an order, in respect of a person convicted before the court in a participating State or participating Territory of a federal offence, if:
(a) subsection (1AA) applies to the sentence or order; and
(b) 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; and
(c) the first-mentioned court is:
(i) empowered as mentioned in paragraph (b); or
(ii) a federal court.
(1AA) This subsection applies to a sentence or order that is:
(a) known as any of the following:
…
(ix) an intensive correction order;
… or
(b) similar to a sentence or order to which paragraph (a) applies; or
(c) prescribed for the purposes of this subsection.
(1A) Where the law of a participating State or a participating Territory requires that before passing a sentence, or making an order, of the kind referred to in paragraph (1)(b) a court must first pass another sentence or make another order (whether or not that other sentence or other order is suspended upon the making of the first-mentioned sentence or order), then, a court is not required, before passing or making that first-mentioned sentence or order in respect of a person convicted by that court for a federal offence, to pass that other sentence or make that other order.
…
(3) 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).
…
(6) Subsection (1) does not permit a court (including a federal court) to pass a sentence, or make an order, that involves detention or imprisonment, in respect of the conviction of a person before the court of a minimum non-parole offence mentioned in section 19AG.
Note: If the court sentences the person to imprisonment for the minimum non-parole offence, it must fix a non-parole period under section 19AG."
The Crown submitted that, although s 20AB(1) and s 20AB(1AA) expressly provides that a court may make an ICO for a federal offence, it is excluded from consideration by s 20AB(6) of the Crimes Act 1914, since, as an offence against Div 80 of the Criminal Code, the terrorism offence was a "minimum non-parole offence" as defined in s 19AG(1)(c).
The applicant accepted that the terrorism offence was a "minimum non-parole offence" but submitted that when s 20AB(6) is read together with s 20AB(1A), the sentencing option of an ICO remained available to a court sentencing a person for such an offence.
[2]
The remarks on sentence
The sentencing judge referred to the agreed facts in an appropriately abbreviated form so as to minimise the dissemination of terrorist material. His Honour fixed the objective seriousness of the terrorism offence as being "slightly above mid-range" and the ammunition offence, as noted earlier, as being "well above the mid-range", due to the quantity of ammunition involved.
His Honour canvassed Dr Seidler's report in some detail, quoting passages at length. His Honour expressed reservations as to the applicant's downplaying to Dr Seidler of the seriousness of his posts, concluding that section of his remarks by observing:
"52 Subject to the qualifications I have already expressed, I otherwise accept Dr Seidler's evidence summarising your subjective circumstances.
53 You have not given sworn evidence of any remorse or contrition. Nor have you resiled from, or actively renounced, the views underpinning [the terrorism offence]. In the absence of such sworn evidence, and notwithstanding the self-serving and (at times) evasive answers given in the interview with police on 23 November 2021, I am not satisfied, on the balance of probabilities, that you are remorseful or genuinely contrite in relation to either of the offences.
54 In all of the circumstances, I regard your prospects for rehabilitation as being poor.
55 In relation to both offences, considerations of both general and specific deterrence and the need to protect the community are fully engaged."
As to whether an ICO for the terrorism offence was within range or available on the construction of the relevant legislation, the sentencing judge found:
"58 In relation to [the terrorism offence], a significant proportion of the sentencing hearing was taken up with competing submissions as to whether, for that offence, any term of imprisonment could, at law, be served by means of an Intensive Corrections Order.
59 It is not necessary for me to resolve that legal issue because, in my opinion, even if an Intensive Corrections Order were available at law, and even if the sentence [was] fixed for a length of time which theoretically might make an Intensive Corrections Order an available sentencing option, your offending is of such seriousness that community safety, being the paramount consideration, could not be adequately addressed by any such term being served in the community."
[3]
The applicant's submissions
In relation to the sentencing judge's reason for refusing an ICO in the passage in [59] of his remarks on sentence concerning the seriousness of the offending and community safety, extracted at [57] above, the applicant referred to Stanley v Director of Public Prosecutions (NSW) (2023) 97 ALJR 107; [2023] HCA 3, which was handed down 12 days after the applicant's sentence.
The applicant submitted that the sentencing judge's reasoning, in particular, that the applicant's "offending is of such seriousness that community safety, being the paramount consideration, could not be adequately addressed by any such term being served in the community", was contrary to the third of the three-step process to be undertaken by a sentencing court that ultimately sentences an offender to a term of imprisonment. In Stanley, Gordon, Edelman, Steward and Gleeson JJ said:
"59 There are three steps to be undertaken by a sentencing court prior to the final order by which a sentence of imprisonment is imposed under the Sentencing Procedure Act, or confirmed or varied on a sentencing appeal: first, a determination that the threshold in s 5(1), described below, is met; secondly, determination of the appropriate term of the sentence of imprisonment; and thirdly, where the issue arises, consideration of whether or not to make an ICO. …
60 The first step requires the court to be satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. The possible alternative penalties include a community correction order, a conditional release order, conviction with no other penalty and a fine. An ICO is not an alternative penalty.
61 ICOs are of a different kind - an ICO is a sentence of imprisonment (for the purposes of s 5) that is directed, under s 7, to be served by way of intensive correction in the community rather than full-time detention. …"
In relation to the third step, the plurality said:
"77 While aspects of community safety underpin some of the general purposes of sentencing, such as specific and general deterrence and protection of the community from the offender, those aspects will have been considered in deciding whether to impose a sentence of imprisonment (ie, before considering an ICO). Community safety is required to be considered again and in a different manner under s 66 when considering whether to make an ICO. At this third step, community safety in s 66(1) is given its principal content by s 66(2), namely, the safety of the community from harms that might result if the offender reoffends, whether while serving the term of imprisonment that has been imposed or after serving that term of imprisonment."
It was submitted that the sentencing judge had failed to consider whether, as required in the third step, the community was better protected from the applicant reoffending by serving his sentence in the community rather than in a prison.
In my view, it is unnecessary to determine whether the sentencing judge's approach to the issues of community safety when considering an ICO was contrary to that which is mandated in Stanley, since error has already been established.
The applicant's submissions in relation to ground 2 were otherwise an elaboration of those made below. The applicant maintained that a person could be the subject of an ICO for a "minimum non-parole offence" in spite of s 20AB(6) of the Crimes Act 1914, by the following process of reasoning.
The applicant noted that s 7(1) of the CSP Act required a sentencing court to sentence an offender to a term of imprisonment before making an ICO. The applicant submitted that, pursuant to s 20AB(1A) of the Crimes Act 1914, a court is not required to first sentence the offender to a term of imprisonment before making an ICO. He noted that in R v Togias (2001) 127 A Crim R 23; [2001] NSWCCA 522, Spigelman CJ noted that the genesis of s 20AB(1A) lay with a recommendation of the Australian Law Reform Commission (ALRC 44 at par 125). The Chief Justice said, at [23]:
"The Commission's concern was to ensure that each sentencing option would be available for consideration on its own merits. It referred to a situation in which a community service order could only be made if the Court had found that the offender should be imprisoned. This is reflected in the terms of s20AB(1A) by the use of the word 'requires' with reference to 'must first pass another sentence', as a description of the relevant State or Territory law."
The applicant submitted that, although s 20AB(6) provides that s 20AB(1) does not permit a court "to pass a sentence, or make an order, that involves detention or imprisonment" in respect of a person convicted of a minimum non-parole offence, the term "imprisonment" should be understood as referring to "actual imprisonment" to distinguish it from "something other than actual imprisonment". Since s 20AB(1A) avoids a candidate for an ICO having to be first sentenced to a term of imprisonment, there is a pathway for a person convicted of a minimum non-parole offence to receiving an ICO.
The applicant advanced three reasons for the meaning of "imprisonment" in s 20AB(6) that he contended for, as follows:
"(a) the ordinary meaning of 'imprisonment' is the act of putting a person in prison (or a place like a prison) and the context does not suggest that a different meaning should be given to the term;
(b) the term is to be read eujsdem generis with the term 'detention', which conveys that the offender is actually detained;
(c) it is consistent with reference in s 20AB(1AA) to 'a sentence or order' that is '(a) known as . . . (iv) a community custody order', '(a) known as ... (xi) a sentence of periodic detention or a periodic detention order' or '(a) known as … (xii) a sentence of weekend detention or a weekend detention order' or '(b) similar to' such sentence or order (so that it is apparent that the purpose of s 20AB(6) is to ensure that such a sentence or order that 'involves detention or imprisonment' may not be utilized to evade the operation of s 19AG)."
As at the sentence hearing, the applicant submitted that the approach taken by this Court in Mandranis would permit the Court on re-sentence to make an ICO even though a backdated sentence would exceed 2 years.
[4]
The respondent's submissions
The respondent submitted that s 20AB(6) and the note following it are in clear terms, and noted that ss 20AB(6) and 19AG were introduced by the Anti-Terrorism Bill 2004 (Cth). The Supplementary Explanatory Memorandum to the Bill explained the rationale for introducing s 20AB(6) and that it was intended to ensure that the sentencing alternatives made available by s 20AB(1) were not available for a person before the court of a minimum non-parole offence:
"Proposed subsection 20AB(6) stipulates that subsection 20AB(1) of the Crimes Act 1914 does not permit a court to pass a sentence or make an order, that involves detention or imprisonment, in respect of the conviction of a person before the court of a minimum non-parole offence mentioned in proposed section 19AG.
Subsection 20AB(1) currently enables a court to impose on federal offenders a sentence or order where that court could, under the law of the participating State, make such sentence or order. Such sentences or orders can be made to the extent that relevant State law are not inconsistent with Commonwealth legislation …
Proposed section 20AB(6) will ensure that a person sentenced to serve detention in custody or imprisonment cannot be ordered to serve that sentence of imprisonment or detention by way of the additional sentencing alternatives under section 20AB(1) of the Crimes Act 1914."
[5]
Consideration
In my view, the ordinary meaning of s 20AB(6) of the Crimes Act 1914 is that a court that is sentencing a person for a minimum non-parole offence, as defined in s 19AG, cannot make an order of a type identified in s 20AB(1AA) if, in order to do so, it first determines that a sentence of detention or imprisonment is the appropriate sentence.
I am fortified in my understanding as to the meaning of the subsection by the explanation in the Supplementary Explanatory Memorandum to the Bill, which I take into account pursuant to ss 15AB(1)(a) and (2)(e) of the Acts Interpretation Act 1901 (Cth). The reasoning advanced by the applicant to the effect that the term "imprisonment" means "actual" imprisonment to distinguish it from "something other than actual imprisonment", is artificial and contrary to the ordinary meaning of the word, its context and the objective of the subsection.
[6]
A lesser sentence is warranted
I consider that a lesser sentence is appropriate. As is apparent from the resentencing exercise, in the end result it transpires to be only slightly so.
[7]
Resentence
I agree with the findings made by the sentencing judge as to the objective seriousness of the offences. I accept the opinion of Dr Seidler, extracted at [45] above, that the applicant's mental health issues led to the applicant "going online to seek solace, connection, distraction and reinforcement" and in that sense it was a contributing factor to the commission of the offence, but I note that it does not explain why he chose to overcome those issues of isolation and loneliness in that particular fashion. Rather, his terrorist online activities appear to be a development from a long-standing resentment towards people he perceives to be different to him and who somehow constitute a threat to his well-being for that reason.
The fact that the applicant states that he made his postings under the influence of alcohol does not mitigate his offending behaviour (CSP Act, s 21A(5AA)). The offending was carried out over a period of 31 months, which bespeaks a determination and on-going commitment to engage in that behaviour, which only ceased with the intervention of the joint terrorism task force. There is evidence of regret by the applicant for committing the offences, but in my view, not of remorse. I also take into account the level of risk of the applicant committing a like offence, as assessed by Dr Seidler.
In favour of the applicant, he has the benefit of his early pleas of guilty to both offences. He has the support of his family, which, together with therapy, is likely to be central to his prospects of rehabilitation and overcoming his deep social isolation.
In relation to the terrorism offence, I would impose a sentence of 2 years and 4 months, backdated to commence on 23 November 2021. I would impose a non-parole period of 1 year and 9 months, which will expire on 22 August 2023. The balance of term of 7 months will expire on 22 March 2024. I note the ratio of the non-parole period to the total sentence is 75 per cent, consistently with the minimum ratio for an offence against Div 80 of the Criminal Code: see s 19AG(1)(c) and (2) of the Crimes Act 1914.
In relation to the ammunition offence, taking into account the discount of 25 per cent for the applicant's early plea of guilty, I would impose a fixed-term sentence of 5 months' imprisonment, backdated to commence on 23 November 2021, so that it was served entirely concurrently with the sentence for the terrorism offence.
I propose the following orders:
(1) Grant leave to appeal.
(2) Allow the appeal.
(3) Quash the sentences imposed in the District Court by Colefax SC DCJ on 3 February 2023.
(4) Resentence the applicant as follows:
1. For the terrorism offence, impose a term of imprisonment of 2 years and 4 months, backdated to commence on 23 November 2021 and to expire on 22 March 2024, with a non-parole period of 1 year and 9 months, to expire on 22 August 2023.
2. For the ammunition offence, impose a fixed-term sentence of imprisonment of 5 months, backdated to commence on 23 November 2021 and to expire on 22 April 2022.
CAVANAGH J: I agree with the orders proposed by Ierace J for the reasons set out in his Honour's judgment. I would only add this.
Error having been conceded, the issue which arises on this appeal is whether, on resentence, the Court may order that the applicant serve any sentence by way of an ICO, as the applicant contends.
As submitted by the Crown, s 20AB(1) and s 20AB(1AA) of the Crimes Act 1914 (Cth) permit the Court to make an ICO for a federal offence but those provisions are subject to the exception in s 20AB(6). That is, provided that the sentence or order involves detention or imprisonment, then s 20AB(1) does not apply in respect of the conviction of a person of a minimum non-parole offence mentioned in s 19AG.
There is no dispute that the offence of which the applicant has been convicted is such an offence. The applicant's contention that the Court could still make an ICO is based on the proposition that an order that the sentence be served by way of intensive correction in the community is not an order that involves detention or imprisonment.
Subsections 7(1) and (2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("CSP Act") are in the following terms:
"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."
It is clear that the discretion of the Court to make an ICO directing that the sentence be served by way of intensive correction in the community only arises when the Court has sentenced the offender to imprisonment in respect of one or more offences.
Further, as set out in s 7(2), if the Court makes an ICO, it must not set a non-parole period.
The difficulty for the applicant is that the power to make an ICO only arises when a Court has sentenced an offender to imprisonment in respect of an offence. All the Court is then doing is directing that the term of imprisonment is served by way of intensive correction in the community. As such, the sentence involves imprisonment in accordance with the meaning of the term used in s 7 of the CSP Act.
Contrary to the applicant's submissions, there is no scope for giving the phrase "detention or imprisonment" in s 20AB(6) some type of restricted meaning, whereby imprisonment is limited to "actual" or custodial imprisonment.
Before making an ICO, the sentencing Court is required to sentence the offender to a term of imprisonment. As the offence of which the applicant was convicted was a minimum non-parole offence and it is necessary to first sentence an offender to imprisonment prior to making an ICO, then in the circumstances, s 20AB(6) precludes the sentencing court from making an order of the type referred to in s 20AB(1AA), that is, an ICO.
As such, I agree with the resentencing undertaken by Ierace J and the orders which his Honour proposes.
[8]
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: 30 June 2023
Solicitors:
RJ O'Halloran & Co Solicitors (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)
File Number(s): 2021/333675
Decision under appeal Court or tribunal: District Court
Citation: R v Homewood [2023] NSWDC 3
Date of Decision: 3 February 2023
Before: Colefax SC DCJ
File Number(s): 2021/333675
As to ground 1
1. The sentence imposed for the ammunition offence was manifestly excessive. The sentencing judge's notional starting point for the sentence was 12 months' imprisonment, which was reduced for the applicant's early guilty plea to arrive at a sentence of 8 months. The nominal starting point is the maximum penalty for the offence, which is irreconcilable with the sentencing judge's finding that the level of objective seriousness was not in the worst category: Ierace J at [17]; Beech-Jones CJ at CL agreeing at [8]; Cavanagh agreeing at [78].
The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48, referred to.
JUDGMENT
BEECH-JONES CJ at CL: I have had the benefit of reading the judgment of Ierace J. As his Honour notes, a significant aspect of the parties' submissions in relation to the resentencing of the applicant for the federal offences he committed concerned whether the Court could and, if so, should make an Intensive Correction Order ("ICO") as provided for in s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the "Sentencing Act").
In relation to whether the Court could make such an order, the applicant submitted that a combination of ss 20AB(1) and (1AA)(a)(ix) of the Crimes Act 1914 (Cth) enables a sentencing court, including this Court, to make an ICO. The Crown submitted that those provisions do not authorise the imposition of such an order in this case because of the operation of s 20AB(6), which precludes the Court from doing so where the sentence or order "involves detention or imprisonment, in respect of the conviction of a person… of a minimum non-parole offence mentioned in section 19AG". Section 19AG specifies that an offence against, inter alia, Div 80 of the Criminal Code Act 1995 (Cth), such as that committed by the applicant, is a "minimum non-parole offence".
Senior Counsel for the applicant, Mr Odgers SC, submitted that s 20AB(6) did not preclude the making of an ICO given that s 20AB(1A) provides that, where a "law of a participating State or a participating Territory" requires that "before passing a sentence, or making an order, of the kind referred to in [s 20AB(1)(b)] a court must first pass another sentence or make another order… then, a court is not required, before passing or making that first-mentioned sentence or order in respect of a person convicted by that court for a federal offence, to pass that other sentence or make that other order" (emphasis added). A participating State or Territory is a State or Territory that has arrangements in place for their officers to enforce the provisions of the Crimes Act and orders made thereunder (as well as the facilities and procedures to do so) (Crimes Act, s 3B(2)). Mr Odgers submitted that s 20AB(1A) has the effect that, when sentencing judges make an ICO for a federal offence, they are not required to first impose a sentence of "imprisonment" as contemplated by the Sentencing Act. Thus, it was submitted that the making of an ICO for a federal offence that is a minimum non-parole offence does not "involve" detention or imprisonment within the meaning of s 20AB(6) of the Crimes Act.
The provisions of s 20AB make it clear that the various sentencing options specified in s 20AB(1AA) take their colour and meaning from the provisions of the relevant "law of the State or Territory" (s 20AB(1)(b)). In this case, that "law" is the Sentencing Act. Section 7 of the Sentencing Act makes it clear beyond argument that in New South Wales an ICO can only be imposed once a court "has sentenced an offender to imprisonment for 1 or more offences" (s 7(1)). It is true that s 20AB(1A) liberates the sentencing court from the requirement imposed by the "law of a participating State or a participating Territory" to sentence an offender to imprisonment before imposing a sentence or making an order of the kind referred to in ss 20AB(1)(b) and (1AA) (emphasis added). However, in the case of an ICO imposed for a federal sentence, I cannot conceive how an offender would not still have to be sentenced to a term of imprisonment as required by either the Crimes Act or the Sentencing Act applying by its own force or as picked up and applied by s 68(1) of the Judiciary Act 1903 (Cth) (see Mourtada v R [2021] NSWCCA 211; (2021) 290 A Crim R 514 at [16] per Basten JA with Campbell J agreeing). Given the legislative history and purpose of ICOs, if an ICO is not to be treated as something imposed once a sentencing court has determined that a sentence of imprisonment is appropriate, then it is deprived of any substantive content (see ibid; Mandranis v The Queen [2021] NSWCCA 97; (2021) 289 A Crim R 260 at [25] per Simpson AJA with Garling and N Adams JJ agreeing; R v Pogson (2012) 82 NSWLR 60; [2012] NSWCCA 225). An ICO must operate for a period of time that is determined by the sentence of imprisonment that has been first imposed by the Court (see, for example, Commonwealth Director of Public Prosecutions v Joyce [2022] FCA 1423).
Moreover, without a sentence of imprisonment being imposed before or at the time an ICO is made, then it is difficult to see how an ICO could be enforced. An offender who breaches an ICO is subject to the scheme for revocation and possible reinstatement of the ICO found in Div 1 of Pt 7 of the Crimes (Administration of Sentences) Act 1999 (NSW) (the "CASA Act"). In particular, the State Parole Authority is given power to revoke an ICO by s 164(2)(e) of the CASA Act. If the Parole Authority exercises that power, it may issue a warrant "committing the offender to a correctional centre to serve the remainder of the sentence to which the order relates by way of full-time detention" (CASA Act, s 181(1); emphasis added). These provisions operate on the assumption that the revocation of the ICO will leave the sentence of imprisonment (which was imposed prior to the imposition of the ICO) intact and legally operative to require the imprisonment of the offender for the balance of the sentence. If no sentence of imprisonment is imposed prior to (or as part of) the making of an ICO, then a revocation of an ICO would not appear to have any practical effect other than to possibly release the offender from the necessity to comply with any conditions that were imposed.
It follows that an ICO is a sentence or order that "involves" imprisonment for the purposes of s 20AB(6) of the Crimes Act. Hence, I agree with Ierace J that it is not an available sentencing option in this case.
Had an ICO been an available sentencing option in this case, two further questions would have arisen out of the Crown's submission that the objective seriousness of the applicant's offending precluded consideration of an ICO. The first question is whether that submission is itself precluded by the judgment of Gordon, Edelman, Steward and Gleeson JJ in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; (2023) 97 ALJR 107 ("Stanley"), especially at [73]−[77]. The second question is how that part of the reasoning in Stanley along with s 66 of the Sentencing Act upon which it is based engages with the balance of the provisions of the Crimes Act especially s 16A (Al Am Ali v R [2021] NSWCCA 281 at [1]). However, given the conclusion I have reached about the availability of an ICO, it is not necessary to address those issues.
I otherwise agree with Ierace J and the orders his Honour proposes.
IERACE J: The applicant seeks leave to appeal against two sentences of imprisonment that were imposed on him, following early pleas of guilty, by Judge Colefax SC (the sentencing judge) in the District Court at Parramatta: R v Homewood [2023] NSWDC 3. The two offences are as follows:
1. Between 27 March 2019 and 23 November 2021, he intentionally advocated the doing of a terrorist act or the commission of a terrorist offence referred to in s 80.2C(2) of the Criminal Code Act 1995 (Cth), being reckless as to whether another person will engage in a terrorist act or the commission of a terrorism offence referred to in s 80.2C(2) of the Criminal Code (the terrorism offence);
2. On 23 November 2021, he failed to store ammunition in an approved storage space whilst the holder of a firearms licence, contrary to s 40(1) of the Firearms Act 1996 (NSW) (the ammunition offence).
The maximum penalties were, for the terrorism offence, 5 years imprisonment and for the ammunition offence, 12 months' imprisonment and 20 penalty units. The ammunition offence was a "related offence" within the terms of s 166 of the Criminal Procedure Act 1986 (NSW) and had been transferred from the Local Court to the District Court for sentence.
For the terrorism offence, the sentencing judge handed down a sentence of 2 years and 7 months, backdated to commence on the date of the applicant's arrest and entry into custody, which was 23 November 2021. His Honour fixed a non-parole period of 1 year 11 months, which will expire on 22 October 2023. The balance of term of 8 months will expire on 22 June 2024. I note that the ratio of the non-parole period to the total sentence is 74.2 per cent.
For the ammunition offence, the sentencing judge imposed a fixed term of imprisonment of 8 months, to be served wholly concurrently with the sentence for the terrorism offence. Accordingly, that sentence expired on 22 July 2022.
The sentences were handed down on 3 February 2023. On 15 March 2023, the sentencing judge forwarded to the parties a notice of "orders made in chambers" in relation to the sentence that had been imposed for the terrorism offence (the further orders). It was noted in the document that "the fixing of a non-parole period … was impermissible". It recorded two purported orders, the first being that the sentence for the terrorism offence was "set aside" and the second sentencing the applicant "to a term of imprisonment of 2 years and 7 months to date from 23 November 2021; and that he be released to a recognizance order of 8 months to date from 23 October 2023". The parties had not been forewarned of the sentencing judge's intention to re-sentence the applicant.
It appears that his Honour had determined that s 19AC(1) of the Crimes Act 1914 (Cth) applied, which is to the effect that a sentence for a single federal offence which is for a period of imprisonment that does not exceed 3 years must not have a non-parole period, but rather a recognizance release order. However, s 19AG(1)(c) of the Crimes Act 1914 overrides that provision, by obliging a sentencing court to impose a non-parole period for offences against Div 80 of the Criminal Code, since the terrorism offence comes within Div 80. The relevant sub-sections of s 19AG are as follows:
"19AG Non-parole periods for sentences for certain offences
(1) This section applies if a person is convicted of one of the following offences (each of which is a minimum non-parole offence) and a court imposes a sentence for the offence:
(b) a terrorism offence;
(c) an offence against Division 80 of the Criminal Code;
(d) an offence against subsection 91.1(1) or 91.2(1) of the Criminal Code.
Note: A sentence for a minimum non-parole offence is a federal sentence, because such an offence is a federal offence.
(2) The court must fix a single non-parole period of at least 3/4 of:
(a) the sentence for the minimum non-parole offence; or
(b) if 2 or more sentences have been imposed on the person for minimum non-parole offences - the aggregate of those sentences.
The non-parole period is in respect of all federal sentences the person is to serve or complete.
… "
In any event, the respondent submits, and the applicant agrees, that the sentencing judge was functus officio upon the handing down of the sentences and that the purported re-sentence was outside the jurisdiction permitted by statutory and common law principles that facilitate a correction of an order. In my view, that is correct. I disregard the further orders.
There are two grounds of appeal, which are as follows.
"Ground 1
The sentence imposed in respect of the [ammunition] offence was manifestly excessive.
Ground 2
The sentencing judge erred in deciding whether to make an intensive correction order directing that the sentence for the [terrorism] offence be served by way of intensive correction in the community."
The respondent accepts that the first ground is made out. The sentencing judge found that the objective seriousness of the ammunition offence was "well above the mid-range for offences of their kind" and nominated a notional starting point for the sentence of 12 months' imprisonment, which he reduced for the early plea of guilty to arrive at a sentence of 8 months. An error is apparent. The sentencing judge's nominal starting point is the maximum penalty for the offence, which is irreconcilable with the level of objective seriousness not being in the worst category: see The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [18].
The respondent submits that error is also disclosed in respect of the sentence imposed for the terrorism offence, since s 19AG(2) of the Crimes Act 1914 obliges a court that is imposing a sentence for an offence against Div 80 of the Crimes Act 1914 to fix a non-parole period of at least three-quarters of the sentence. The non-parole period that was imposed fell short of that ratio (74.2 per cent). In my view, this error is also established. In addition, it is submitted that the sentencing judge may have taken into account the infected sentence for the ammunition offence when fixing the sentence for the terrorism offence. In view of the non-compliance with s 19AG(2), it is unnecessary to determine whether that is so.
Since error is established, it is unnecessary to determine the second ground. However, the issue raised in it should be determined, since it remains relevant to this Court's determination of whether some other sentence is warranted in law and should have been passed: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [43].