Karout v R

Court of Criminal Appeal (NSW)|2019-08-26|Before: Hoeben CJ, Brereton JA, Fullerton J, Per Brereton JA

The applicant

The applicant was born on 29 March 1992, and was thus 26 years of age at the time of the sentencing proceedings. He married Daniella Khalil in January 2016 and their first child, a daughter, was born on 1 November 2018.

The sentencing of the co-offenders

The others involved were sentenced as follows:
Atiyas was sentenced, also by Robison DCJ on the same occasion as the applicant, in respect of an offence of knowingly take part in the supply of 950 grams of cocaine, contrary to Drug Misuse and Trafficking Act s 25(2) (for which the maximum penalty is 20 years imprisonment and the standard non‑parole period ten years), to a non-parole period of three years and three months and a balance term of one year and nine months, being a total sentence of five years.
The applicant's brother Ali Karout was sentenced on 15 November 2016 by Hosking ADCJ, in respect of an offence of knowingly take part in the supply of heroin contrary to Drug Misuse and Trafficking Act s 25(1) (the same offence as the applicant), to a term of 18 months imprisonment, wholly suspended on a s 12 bond.
The applicant's father Kaldon Karout was sentenced by Lakatos SC DCJ on 1 June 2018, in respect of offences of (1) supplying not less than the large commercial quantity of cocaine (being 1008.06 grams) contrary to Drug Misuse and Trafficking Act s 25(2); and (2) supplying not less than the large commercial quantity of heroin (being 1285.22 grams) contrary to Drug Misuse and Trafficking Act s 25(2), with a further matter of supplying 22.94 grams of heroin on a Form 1. On the first he was sentenced to a non-parole period of five years and total effective sentence of seven years, and on the second to a non-parole period of five years and four months and total effective sentence of eight years, with a partial accumulation of three months.

The judgment of the sentencing judge

The remarks on sentence reveal that the sentencing judge proceeded as follows.
First, his Honour noted, as an aggravating factor, that the offence was committed whilst he was on two s 10 bonds, one in respect of an offence of possess prohibited drug, and the other for one of resist an officer.
Secondly, in the course of summarising the agreed facts, his Honour noted matters which satisfied him, beyond reasonable doubt, that the applicant had some "prior knowledge" of the process of "blocking" cocaine.
Thirdly, his Honour distinguished the applicant's case from that of his brother Ali Karout (which was considered somewhat less serious, and in respect of which there were additional mitigating factors, most notably that he had no criminal record whatsoever), and that of Atiyas (whose role was greater).
Fourthly, his Honour determined that the appropriate utilitarian discount for the plea of guilty, though it was not early, was 20%.
Fifthly, his Honour referred to the report of Professor Woods, which I have sought to summarise above. In the course of doing so, his Honour noted that there was "nothing to indicate anything that would contradict" the applicant's assertion that this was the only occasion on which he had any involvement in the processing of an illicit substance - an observation which does not necessarily sit comfortably with his Honour's findings elsewhere that the applicant had some "prior knowledge" of the process.
Sixthly, his Honour concluded that the offence fell "in the middle range of objective seriousness" for offences of this kind. In this, his Honour had regard to a number of references in the conversations recited in the agreed facts from which it was inferred that the applicant had "prior knowledge" of the process, and had provided the plates used in it.
Finally, his Honour concluded that although, since Parente v R, [1] there is no longer a principle that in drug trafficking cases a full-time custodial sentence should be imposed unless there are exceptional circumstances being demonstrated, nonetheless - giving weight in particular to general deterrence - the s 5 threshold had been crossed and a sentence of imprisonment was entirely appropriate. His Honour rejected the submission made on behalf of the applicant that the sentence should be served by way of Intensive Correction Order, concluding that that there ought to be a sentence of imprisonment to be served on a full-time custodial basis. His Honour found "special circumstances", because he considered that prospects of rehabilitation "have been amply made out", and a departure from the standard ratio would not only serve to address his problems, but would also serve to protect the community when he is eventually released.
For those reasons, after allowing for the 20% utilitarian discount, his Honour set a non-parole period of one year, commencing 5 November 2018 and expiring 4 November 2019, and imposed a balance term of imprisonment of one year to commence upon the expiration of the non-parole period and expiring 4 November 2020, so that the total sentence was two years.

The grounds of appeal

The applicant propounds the following grounds of appeal: 1. His Honour erred in the assessment of the objective seriousness of the offence, in circumstances where (a) the learned sentencing judge took into account that the applicant supposedly supplied the plates for the pressing of the drugs, where there was either no, or insufficient, evidence to prove such a matter beyond reasonable doubt, and (b) the finding concerning the objective seriousness was not open. 2. In refusing to permit the applicant to serve his sentence of imprisonment in the community by way of an intensive correction order, his Honour failed to have regard, as required by s 66 Crimes (Sentencing Procedure) Act 1999 to the protection of the community. 3. The applicant has a justifiable sense of grievance in the light of the sentence imposed upon the co-offender, Ali Karout. 4. The sentence imposed was manifestly excessive.

Ground 1 - assessment of the objective seriousness of the offence

As the offence in question in this case was not one which carried a standard non-parole period, the strictures of Muldrock v The Queen [2] do not apply in their full rigour, and it is unnecessary - and indeed may be unwise - in such a case to compare the objective seriousness of the offence with the "mid-range". [3] That is because it is not necessary to determine where by reference to the mid-range of objective seriousness the offence sits. Nonetheless, it is still necessary for a sentencing judge to form a view as to the objective gravity of the offence, and that is what the sentencing judge did here.
The assessment of objective seriousness is quintessentially a matter for the sentencing judge, [4] in respect of which error will be demonstrated only on the grounds referred to in House v The King. [5] For the applicant, it was submitted that his Honour erred in taking into account, as a matter which increased objective seriousness (and which therefore had to be proven beyond reasonable doubt), [6] that the applicant had supplied the plates that were used to block the cocaine. It was contended that this matter was not proved to the requisite standard.
This ground of appeal turns on the following passage in the judge's remarks on sentence (emphasis added): I am also mindful that the offence does indeed fall in the middle range of objective seriousness, and I have taken into account the specific matters relied upon by the Crown there, and I am also mindful of what has been said by Mr James. But when one steps back and looks at his involvement in this activity, one can only really conclude that this was a matter that falls around about the middle of the range of offences of this kind. I am particularly mindful that there was a supply of the plates being used in the occasion to block the cocaine. There does appear to have been some knowledge about this process. I am also mindful that his involvement was relatively brief, but it was an involvement not without some degree of significance. I am mindful that he did not profit from his involvement in the drug‑related enterprise; that is something this Court can find. There is nothing to suggest that he engaged in any form of actual supply of the prohibited drugs.
That passage illustrates that his Honour did indeed take into account, in the evaluation of the objective seriousness of the applicant's offending, a finding of fact that the applicant had supplied the plates. Although the language used does not expressly attribute the supply to the applicant, it is only sensible and relevant in the context in which it appears - namely, discussion of the objective seriousness of the applicant's offence - if it is a reference to the conduct of the applicant. The purpose of the finding was to illustrate that the applicant's involvement was more than merely trivial, in that it was he who provided the plates. Likewise, the following sentence, with its reference to "knowledge", is a reference to knowledge on the part of the applicant. (It was not disputed that his Honour was entitled to be satisfied, to the requisite standard, and to take into account, that the applicant had "prior knowledge" of the process). In my view, the conclusion is inescapable that his Honour took into account, and gave some weight to, the circumstance that (as his Honour found) the applicant had supplied the plates.
It was not, in terms, an agreed fact that the applicant had supplied the plates. Any finding that he had done so must have been founded on the conversation referred to at [11] above, in which the applicant had said, in the context of a conversation which appears to have referred to plates having broken on a previous occasion, "Nah, but if you've got professional ones, this one … these ones … someone gave to me as a present … I think was his … his mate gave it to me".
In the context that it was agreed that the applicant had spoken those words, immediately after UKM had said "Nah, but what I'm saying the plates snapped", the inference that the applicant was referring to the plates being used at that moment in the process - the "professional ones" which "someone gave to me as a present" - and that therefore the plates being used in the process were his - was the obvious one. The presence of deficits or gaps in the transcript of the conversation does not detract from this, when it was agreed that those words were said in a single sentence in the course of a conversation about plates. Indeed, in that context, it is difficult to imagine to what else the applicant could have been referring. While it was submitted to the sentencing judge that this involved speculation, no alternative hypothesis was identified. In my judgment, the inference that the applicant was speaking of plates being used in the process as his was one of which the judge was entitled to be satisfied beyond reasonable doubt.
Once that is accepted, the question becomes whether a finding that the offence was in "the mid-range" was not open, or unreasonable. In this respect, counsel for the applicant points to the following considerations: 1. While the amount of drug involved (at 140 grams) was roughly half the next threshold (250 grams), the applicant's involvement was limited to a period of 45 minutes between 5.34pm and 6.19pm on 30 July 2015. The continuous surveillance between 27 July and 11 September 2015 did not reveal him having any other involvement in the illicit use of the factory. 2. There was nothing to suggest that he engaged in the actual supply of the drug, or received any of the drug. 3. He was acting under the guidance and direction of his father Kaldon Karout. 4. Of those who remained after Kaldon Karout's departure, he seemed to perform a lesser role than either Atiyas or UKM.
Mr James QC further submitted that error was demonstrated by a comparison with the judge's conclusion that the offending of Atiyas was also "around the middle of the range". In respect of Atiyas, the judge said: In any event it is necessary for the Court to assess the objective seriousness. I am of the view that it is around the middle of the range of objective seriousness for these reasons: I am mindful of the weight of the drug and the particular role of the offender and the period of time that he was involved in this needs to be taken into account as well. Yes, there was the use of the hydraulic press at the warehouse to block repressed cocaine. Certainly and there is no doubt about this, his participation in this was at a lower level than of Kaldron Karout, there is no issue about that. I am also mindful of his involvement being limited to five occasions as submitted by Mr McMahon. There was certainly a modicum of sophistication and as submitted by Mr McMahon the quantity he assisted with was at the upper end of the commercial range, that needs to be taken into account. Although he received no financial reward as far as the evidence reveals, he certainly was provided with a reward and that was a quantity of cocaine. ... Although he did have a limited role it was certainly a role which was really self-evident on the facts themselves and to some extent he was under the direction of Kaldron. …
The judge accepted that Atiyas' role was significantly greater than that of the applicant: It has been correctly accepted, in my view, that Mr Atiyas's involvement was more substantial than the co-offenders, namely, Ali Karout and Hassan Karout, but I am mindful of the extent to which he was involved in what was occurring in this factory premises. Clearly his involvement was not without some degree of significance, in the circumstances as revealed in the facts, and I so find.
It is not a complete answer to this submission to recognise, as the Crown emphasised, that Atiyas' offence was found to be at the mid-range of a more serious offence. While that is true, the offence with which Atiyas was charged was more serious, and the available range of sentences commensurately greater, because the quantity involved was greater. But when one examines his role, it was also significantly more extensive than that of the applicant (Atiyas was involved on five occasions, as opposed to the applicant's single occasion), and the quantity was at the upper end of the range for the more serious offence (950 grams where the next threshold was 1000 grams, whereas the applicant's was in the middle of the relevant range).
Against that, however, the applicant was engaged in the blocking of the drug, under the earlier direction of his father, with two others. The amount involved was worth in the order of $30,000 to $37,500. He had some prior knowledge of the process, and supplied the plates. And the offence was committed while the applicant was on two s 10 bonds. As the judge said: The fact of the matter is that a s 10 bond does come with conditions. It is also accompanied by an element of trust from a judicial officer in an offender, that all the conditions would be complied with. Section 10 bonds are not given lightly, and I do find that, accordingly, the offence was committed whilst he was on those two bonds, ...
Although, were I approaching the matter afresh, I would incline to the view that objectively this offending was closer to the lower than the mid-range for offences of this kind, I am not satisfied that his Honour's conclusion was not open, or unreasonable. In any event, in the context of an offence for which there was not a standard non-parole period, this finding was not an essential separate integer in the process, but part of the process of synthesis that informed the ultimate result.
Ground 1 therefore fails.

Ground 2 - refusing to make an intensive correction order

In the sentencing proceedings, it was submitted for the applicant that he should be permitted to serve his sentence by way of an intensive correction order. The sentencing judge rejected this submission: I have carefully considered the question as to whether an ICO should be imposed, but I think if I were to do that, that would not recognise just how serious this matter is and would not take into account properly the principles of general deterrence. Accordingly, I am of the view that there ought to be a sentence of imprisonment to be served on a full-time custodial basis in his matter, …
This was in the context that his Honour recognised that there was no longer any rule that a full-time custodial sentence should apply for such offences: I am mindful also of the principles when it comes to drug-related offences, particularly offences of this kind, the level of criminality is important to be assessed, and certainly I am very mindful of what was said in Parente v R [2017] NSWCCA 284, and that it is no longer the law that in sentencing offenders for the supply or involvement in the supply of a significant quantity of drugs, that a full-time custodial sentence should be imposed unless there are exceptional circumstances being demonstrated.
The Crimes (Sentencing Procedure) Act 1999 (NSW) s 66, provides as follows: 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.
This has the effect that in making a decision whether to make an intensive correction order, community safety - including 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 - is the paramount, though not the only, consideration. [7] An ICO may be appropriate where prospects of rehabilitation are good and the risk of re-offending may be better managed in the community. [8]
In rejecting the submission that the sentence should be served by way of ICO, the sentencing judge did not refer, at least explicitly, to community safety, but only to the seriousness of the matter and principles of general deterrence. This must be seen in the context of the following findings, which provide a positive view of the applicant's prospects for rehabilitation, and his need for ongoing psychological treatment: Apparently his wife has a stabilising influence on him. I have taken that into account and I think that bodes well also for any prospects of rehabilitation because stability in an offender's life is important when it comes to embarking on rehabilitation and its hopeful effects. So it is strongly recommended or encouraged that he enter into individual psychological treatment involving those matters as set forth in the report. … I do think in the circumstances here that he is unlikely to reoffend, provided he rises to the challenge of rehabilitation. … And indeed, in each of the offenders I do find special circumstances, because I consider that their prospects of rehabilitation have been amply made out, and that would serve not only to address their problems, but would also serve to protect the community when each of the offenders is eventually released.
In R v Fangaloka, [9] Basten JA (with whom Johnson and Price JJ agreed), expressed the view that s 66 should be given a restrictive, rather than a facilitative, construction, to the effect that an ICO should not be imposed unless the court was satisfied that it was more likely than fulltime custody to address the risk of re-offending (citations omitted): Preferred construction of s 66 63 An alternative reading of s 66 is restrictive, rather than facilitative. Thus, the paramount consideration in considering whether to make an ICO is the assessment of whether such an order, or fulltime detention, is more likely to address the offender's risk of reoffending. That is, unless a favourable opinion is reached in making that assessment, an ICO should not be imposed. At the same time, the other purposes of sentencing must all be considered and given due weight. 64 The first purpose of sentencing, identified in s 3A(a) of the Sentencing Act is "to ensure the offender is adequately punished for the offence." It is a fundamental principle of long-standing and requires that the sentence be reasonably proportional to the offending. One would expect a clear statement or necessary implication of legislative intention for the 2018 amendments to alter that fundamental principle. Equally, there is no doubt that a sentencing court must have regard to the personal circumstances of the offender; but they should not divert the court from imposing adequate punishment, having regard to the objective gravity of the offence. 65 The better view is that the legislature has, appropriately, acted upon the available evidence by requiring the court to have regard to a specific consideration, namely the likelihood of a particular form of order addressing the offender's risk of reoffending. That obligation, imposed by s 66(2), is not stated to be in derogation of the more general purposes of sentencing outlined in s 3A, nor in derogation of other relevant matters: s 66(3). Nor does the legislation limit the consideration of community safety to a means more likely to address the risk of reoffending; it merely identifies that as a mandatory element for consideration. 66 There is no doubt that community safety can operate in different ways in different circumstances. It is conventionally accepted that a purpose of punishment, including by way of imprisonment, is to deter the offender from further offending; it is also accepted that removal of an offender from the community for a period may have a protective function. The purpose of s 66, on this approach, is merely to ensure that the court does not assume that fulltime detention is more likely to address a risk of reoffending than a community-based program of supervised activity. Consistently with that view, s 66 does not seek to address potentially conflicting demands of community safety in the short term, as opposed to the longer term, and the risk that leniency will be abused. In short, there is nothing in s 66 which favours an ICO over imprisonment by way of fulltime custody. Further, while s 66 expressly referred to s 3A, it did so, not by identifying it as a set of "subordinate" considerations, but as mandatory considerations. It would be wrong for a court to treat every consideration other than the means of addressing the risk of reoffending as a subordinate consideration. 67 Although the sentencing judge in the present case did not expressly refer to Pullen; she adopted an approach which had the effect of giving little weight to other purposes. No doubt there will be cases in which a person otherwise likely to serve fulltime custody will obtain an ICO, because general deterrence is largely disregarded in favour of a possible reduction in the risk of reoffending by the particular offender, if not sent to gaol. On the other hand, there will remain cases in which the significant element of leniency contained in an ICO is inconsistent with the imposition of an adequate penalty, so that an ICO is an unacceptable form of punishment.
More recently, the restrictive view of s 66 has been questioned in Casella v R, [10] in which Beech-Jones J said: 107 In Fangaloka, Basten JA construed s 66 as follows (at [63]): "An alternative reading of s 66 is restrictive, rather than facilitative. Thus, the paramount consideration in considering whether to make an ICO is the assessment of whether such an order, or fulltime detention, is more likely to address the offender's risk of reoffending. That is, unless a favourable opinion is reached in making that assessment, an ICO should not be imposed. At the same time, the other purposes of sentencing must all be considered and given due weight." (emphasis added) 108 Read literally, the emphasised statement appears to extract from s 66 a prohibition on the imposition of an ICO unless the Court positively concludes that an ICO is more likely to address the offender's risk of reoffending as opposed to serving a sentence of full time custody. If that is what was meant then it appears to travel well beyond s 66. Nothing in s 66 purports to operate as a prohibition to that effect. On its face, s 66(2) only requires an assessment of 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. It does not appear to necessarily preclude the imposition of an ICO if, say, the outcome of the assessment is neutral because the offender has good prospects of rehabilitation and does not represent a danger to the community, irrespective of whether he or she is incarcerated or subject to an ICO. The imposition of an ICO in such a case would still be consistent with community safety. If this is truly the effect of Fangaloka, then I have significant doubts about whether it is correct. However, this matter was not the subject of argument and its correctness need not be resolved to determine this appeal. Given the findings of the sentencing judge and the Chief Justice, I am satisfied that imposing an ICO in this case gives effect to s 66.
N Adams J said: 111 Second, I agree with Beech-Jones J that s 66(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Act") on its face does not appear to necessarily preclude the imposition of an ICO unless the Court positively concludes that an ICO (as opposed to full-time custody) is more likely to address an offender's risk of reoffending.
It is unnecessary on this appeal to resolve that controversy, because on either approach it is necessary to form a view as to what form of sentence is more likely to address an offender's risk of re-offending. I accept that his Honour's ex tempore reasons must be read as a whole and not in an unduly technical way. [11] However, if his Honour did address the question of community safety in the relevant context, it is simply not possible to discern how he did so. In particular, it is not possible to know whether his Honour's reasoning was that although an ICO would more likely to address the offender's risk of reoffending than full-time custody, the offence was so serious that there must nonetheless be a fulltime sentence; or whether his Honour concluded that a full-time sentence would more likely address the risk of reoffending than an ICO. To my mind, this demonstrates that it cannot be seen whether or how his Honour took into account, on the question of whether the sentence should be served by way of ICO, the paramount consideration of community safety, including in particular whether it would more likely address the offender's risk of reoffending than a full-time custodial sentence. In the context of the express submission that there should be an ICO, and his Honour's conclusions that there were good prospects of rehabilitation, this required serious consideration.
I would therefore uphold Ground 2.

Ground 3 - justifiable sense of grievance

Equal justice requires that, as between co-offenders, there should not be such a disparity in sentencing as gives rise to a "justifiable sense of grievance". [12] However, as the High Court has explained in Green v The Queen, [13] whether there is a justifiable sense of grievance is judged objectively, [14] and disparity may be justified having regard to differences between the co-offenders, including their age, background, criminal history, general character, and the part each has played in the relevant criminal conduct or enterprise. [15]
This ground was advanced by reference to the sentence imposed on the applicant's brother, Ali Karout, who pleaded guilty in the Local Court to one offence of knowingly take part in the supply of heroin contrary to s 25(1), and was committed for sentence. After a 25% discount for his early guilty plea, he was sentenced to a term of 18 months, which was suspended.
It was submitted for the applicant that while the terms of 18 months (after a 25% discount) and 24 months (after a 20% discount) were not greatly different, a legitimate sense of grievance arose from the circumstance that Ali Karout's sentence was wholly suspended. I accept that this makes it a significantly more lenient sentence. [16] However, there were significant differences between the two offenders and their offending.
In my view, sufficient justification for the difference between their sentences is afforded by the circumstance that not only was Ali Karout not serving two s 10 bonds to be of good behaviour, but he had no criminal record whatsoever. Further justification is provided by the somewhat spontaneous and "very minimal role" found to have been played by Ali Karout, who attended the factory only once (somewhat spontaneously at the request of his father), compared with the "prior knowledge" and provision of plates by the applicant. Indeed, in sentencing Ali Karout, Hosking ADCJ said: I add this, that whatever else these other men have done I regard this in the scheme of what they've done as an exceptional case. Although it will be up to some other judge to sentence some or others of these individuals I doubt that any of the others will be able to get any comfort from the sentence I have imposed on the present offender.
The sentencing judge was alert to these considerations: So the facts are relatively limited when it comes to the involvement of Mr Karout, the son of the principal offender, if I could use that term, Kaldon Karout. In the material there is the criminal history of Mr Hassan Karout, certainly this can be easily distinguished from the criminal history of his brother Ali of which there is simply none. I am mindful of what that history reveals and I have taken that into account to the extent that I can. I note that in the remarks on sentence of Ali Karout from Acting Judge Hosking that the Crown sentence summary in that case noted that the offence was not committed whilst he was on any form of conditional liberty. And that he had never been convicted of any offence within New South Wales. The fact of the matter is, whether it be called conditional liberty or a conditional bond or however some may describe it, there is a distinct aggravating feature here to which I referred earlier in these remarks. That clearly distinguishes Mr Karout from his brother Ali Karout. Further, and this is similar to the remarks made by His Honour Judge Lakatos when it came to the involvement of Kaldon Karout, Judge Hosking said that it was obvious that Mr Karout Senior was involved in very serious heroin supply offences, and was clearly making use of very sophisticated equipment for that purpose to dilute apparently and to package up heroin into pressed blocks and was clearly dealing in heroin in quantities greater than the commercial quantity. This appears on page 6 of his remarks on sentence. He also made reference to the offender's minimal degree of involvement in what his father was doing and there was a number of very favourable subjective circumstances which the Court in that case took into account which ultimately led his Honour to impose a sentence of imprisonment, albeit suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act. So there are some distinguishing features there when one considers Mr Ali Karout and Mr Hassan Karout, the offender before me today. The s 12 bond was for a period of 18 months.
Ground 3 therefore fails.

Ground 4 - manifestly excessive

The relevant principles to be applied in respect of a contention that a sentence is manifestly excessive were summarised in Hughes v R, [17] as follows: 86 When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]: (1) appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases; (2) intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error; (3) it is not to the point that this Court might have exercised the sentencing discretion differently; (4) there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and (5) it is for the applicant to establish that the sentence was unreasonable or plainly unjust.
For an offence carrying a maximum penalty of 15 years imprisonment, with a plea entered at a late stage (for which he nonetheless received a 20% discount), in circumstances where he had a criminal history and was on two s 10 bonds, it cannot be said that a non-parole period of 1 year and a balance term of 1 year, being a total effective sentence of 2 years, was unreasonable or plainly unjust.
Ground 4 therefore fails.

Resentencing

However, as I would uphold ground 2, it is necessary to resentence the applicant.
As to objective seriousness, the amount of drug involved (at 140 grams) was roughly half the next threshold (250 grams). Although the applicant appears to have some prior knowledge of the process, it is significant that this was the only occasion, in six weeks of continuous surveillance of the factory, that he was detected to have any role (when his father's role was very much greater, and Atiyas was involved on five occasions). It is also relevant that his involvement was at the instigation and pursuant to the instructions of his father, and that the applicant appears to have received no benefit from his participation (though he hoped to receive some cocaine for personal use). While I have been most troubled by the circumstance that this offence was committed at a time when he was bound to be of good behaviour under not one but two bonds, and while I have declined to find error in the sentencing judge's conclusion that this was a "mid-range" offence, for myself on resentencing I would place it closer to the low than to the medium range.
Before us, an affidavit of the applicant of 14 August 2019 was read. The applicant has been on bail since 16 November 2018, when released by the sentencing judge pending his appeal, after serving 12 days in custody, and has apparently complied with his bail conditions, including a daily reporting condition. His wife is expecting their second child in November 2019. He has voluntarily submitted to urinalysis, which has been clear. He has been able to resume employment with his former employer. He says: Since my arrest in 2015 my life has changed significantly. I have married my wife Daniella Khalil. We have one child born on 1 November 2018 and are expecting a second child in November 2019. … Since my arrest in 2015, my attitude to life has changed. I have matured, I have responsibilities to others. I have a family to look after with another child on the way. I work hard and attempt to contribute to the community. I understand the damage that drugs have to the community and the people who use them. I have every intention to be a person that contributes to the community in a positive way and doesn't break the law.
He has been attending a program with Dr Borenstein under the treatment plan recommended by Professor Woods, for treatment of his anxiety, panic and depressed mood, and his propensity to dependency and passive co‑operation. Dr Borenstein reports that he is well-engaged in treatment which will continue for another twelve months, that he is responding very favourably to psychological intervention to date, and that his substance abuse disorder is in full remission and he has not shown any propensity to relapse into drug use. However, he has become noticeably more anxious as the hearing of his appeal approached, and is fearful of the impact a custodial sentence would have on his precarious mental health. Dr Borenstein opines: Forced separation from his wife, daughter and soon-to-be-born second child will, in my opinion, adversely impact on Mr Karout's mental health and potentially set him back with respect to the progress he has made in psychological treatment to date. I concur with Professor Woods' comment that Mr Karout's mental health is at risk given existing symptoms of Separation Anxiety Disorder and associated mental health issues, namely, propensity towards anxiety, panic and depression. Mr Karout's dependent personality is defined by passivity and it is my opinion that incarceration will expose him to negative influence of other inmates, increasing the possibility of drug relapse. Mr Karout's history confirms vulnerability and risk of being manipulated/influenced by others, as was the case in Mr Karout's relationship with his father.
This material, superimposed on the sentencing judge's findings that he is unlikely to reoffend, and has good prospects of rehabilitation, persuade me that an ICO would much more likely address the risk of reoffending than full-time custody. Even if an ICO can be imposed only where that question is affirmatively answered, that requirement is satisfied here.
While general deterrence is an important consideration in offences such as these, the applicant's unhappy family history, educational limitations, early exposure to drug use, and the dominant influence of his father - who is now removed from the scene - mitigate its importance here. I also take into account that he has served a short period in custody following the sentencing proceedings until appeal bail was granted, on which account the sentence I would impose would be taken to commence from a date twelve days prior to the date of delivery of this judgment.
Having regard to these matters, I consider that while a more severe penalty than that imposed on Ali Karout remains appropriate, it should be served by way of an Intensive Correction Order.
I propose that: 1. leave to appeal be granted; 2. the appeal be allowed; 3. the sentence imposed in the District Court be set aside; and 4. in lieu thereof, the applicant be sentenced to a term of imprisonment for two years, dating from 6 October 2019 and expiring on 5 October 2021, to be served by way of intensive correction in the community, subject to conditions that: 1. the offender must not commit any offence; 2. the offender must submit to supervision by a community corrections officer; 3. the offender must participate in a psychological treatment program of Dialectical Behaviour Therapy, Cognitive Behaviour Therapy and Acceptance Commitment Therapy, and drug use relapse prevention counselling under the supervision of Dr Sam Borenstein (or an alternative psychologist acceptable to the Parole Authority) for a period of 12 months; and 4. the offender must abstain from consuming both alcohol and drugs (other than prescribed medication).
FULLERTON J: I agree with Brereton JA that Grounds 1, 3 and 4 of the application for leave to appeal the sentence of imprisonment of 2 years imposed by Robison DCJ on 6 November 2018 have not been made out.
I have come to a different conclusion as concerns the second ground of appeal. Accordingly, I have come to a different conclusion as to the disposition of the appeal.
For the reasons which follow I propose the following orders: 1. Leave to appeal granted. 2. The appeal dismissed. Whilst the sentence imposed by Robison DCJ on 6 November 2018 is confirmed, there needs to be an adjustment to the date upon which the sentence is ordered to commence to account for time the applicant spent in custody prior to the grant of appeals bail. The sentence is to commence from 6 October 2019, being 12 days prior to the date of judgment taking into account the time spent in custody post‑sentence and prior to the granting of appeals bail on 16 November 2018.
In order to deal with the complaint the subject of the second ground of appeal, and the way in which it was developed in submissions on the hearing of the appeal, it is necessary to set out the ground in full: In refusing to permit the applicant to serve his sentence of imprisonment in the community by way of an intensive correction order, his Honour failed to have regard, as required by s 66 Crimes (Sentencing Procedure) Act 1999 to the protection of the community.
The complaint is not that the sentencing judge failed to give reasons for declining to exercise the discretion in s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act") or any complaint about the adequacy of his Honour's reasons for so doing. Were that the basis upon which the sentencing order of full-time imprisonment was challenged, this Court would have expected that complaint to be made patent in an appropriately particularised ground of appeal in order that consideration could be given to whether there was any failure to conform with a sentencing judge's obligations to give reasons.
In R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [42], Spigelman CJ expressed that obligation in these terms: Sentencing judges are under an obligation to give reasons for their decisions. Remarks on sentence are no different in this respect from other judgments. This is a manifestation of the fundamental principle of the common law that justice must not only be done but must manifestly be seen to be done. The obligation of a Court is to publish reasons for its decision, not merely to provide reasons to the parties. (See also Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [39].)
Neither is there a complaint that declining to make an Intensive Correction Order ("ICO") constituted an error in the exercise of the sentencing judge's discretion. Were that the complaint, either the subject of the second ground of appeal or to be read into it, it would have necessitated a consideration of error in the House v The King (1936) 55 CLR 499; [1936] HCA 40 sense.
Rather, the complaint is that in declining to exercise the discretion to permit the sentence of imprisonment to be served by way of an ICO, the sentencing judge failed to meet the obligation, said by the applicant to be imposed by the terms of s 66 of the Sentencing Act, that he have regard to the "protection of the community", and that by failing to have regard to the fact or alternatively by failing to give paramount consideration to that fact, the order that the sentence of imprisonment be served by way of full-time custody was defective as a matter of law.
In my view, that analysis is based on a misunderstanding of the operation of s 66 of the Sentencing Act. 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.
By stipulating in s 66(1) that community safety is to be treated by sentencing courts as the paramount consideration when a submission is advanced that a sentence of imprisonment should be served in the community, the Legislature should not, in my view, be taken to have intended that community protection be elevated to a mandatory consideration in the sentencing exercise, in the sense that it should dominate considerations of broader sentencing principles, including considerations which may dictate that no lesser sentence than one involving a full-time custodial term is appropriate.
Despite the controversy in this Court as to whether s 66 should be interpreted as restrictive rather than facilitative, a controversy encapsulated in the judgments Brereton JA extracted at [57]-[59], the observations of Basten JA in R v Fangaloka [2019] NSWCCA 173 at [59]-[61] (with whom Johnson and Price JJ agreed) are not controversial. After referring to the reasoning of the primary judge in R v Pullen [2018] NSWCCA 264, to the effect that he considered himself obliged to consider whether, after imposing a sentence of 2 years, it was appropriate that it be served by way of an ICO, Basten JA said: 60. The basis for the stated obligation was not explained in the passage extracted in the judgment of this Court. However, there was no such express obligation under the provisions introduced in 2010, nor is there such an obligation expressed in the current provisions. If there were such an obligation, the Local Court (where the power to impose imprisonment for an individual offence is limited to 2 years) would be required to consider imposing a sentence by way of ICO in every case in which imprisonment was appropriate. 61. I would not construe the relevant provisions in s 7 and Pt 5 of the Sentencing Act as imposing such an obligation. However, the fact that the power to consider imposing an ICO exists invites a further question as to the basis upon which a court should decline to consider imposing an ICO. That must include cases where the court is satisfied, not only that there is no alternative to a sentence of imprisonment, but also that factors not limited to deterrence and rehabilitation of the offender require no lesser sentence than one involving a fulltime custodial term. That may be because of the need for adequate punishment, for general deterrence, for denunciation, or for recognising the harm done to the victim and the community. That being so, it would be strange if those broader considerations were reduced to a subordinate role immediately the court gave consideration to making an ICO. Such a conclusion would achieve a high degree of inflexibility and artificiality in the process of sentencing. There is no indication that the statutory scheme intended such a result.
Adopting and applying that analysis (with which I agree), I consider that were the Legislature to have intended to impose on sentencing courts an obligation to give paramount consideration to community supervised programs as a means of ensuring community safety as one of the purposes of sentencing in s 3A(c) of the Sentencing Act, or to impose on a sentencing court a statutory obligation to give reasons for concluding that the other purposes of sentencing in s 3A, alone or in combination, dictate that even where the offender's risk of reoffending is such that community protection can be sufficiently addressed by an ICO, a sentence of full-time custody is the appropriate sentencing outcome, I would have expected the Legislature would have made that plain when the 2018 amending Act was passed.
In my view, the sentencing judge's approach to the exercise of the power in s 66 does not reveal error. I respectfully disagree with Brereton JA at [60] of his Honour's judgment that the sentencing judge's reasons for declining to exercise that power are deficient, or that there was any failure to give appropriate consideration to the protection of the community in his ultimate determination that the sentence of imprisonment should be served by an order for full-time custody.
The result might have been otherwise (and a different ground of appeal framed) were the sentencing judge to have failed altogether to refer to the written and oral submissions of the applicant's senior counsel that an ICO was an available and appropriate sentencing order.
After a sensible rendering of his Honour's ex tempore sentencing reasons, delivered following detailed oral submissions from the parties in addressing their written submissions, I am left in no doubt that when his Honour stated that he had carefully considered whether an ICO should be imposed, the question of community protection, as one amongst a number of discretionary considerations having an impact upon the ultimate sentencing order, was given appropriate weight in the discretionary sentencing exercise.
The fact that his Honour made positive findings as to the applicant's good prospects of rehabilitation and that he was unlikely to reoffend, findings which might, in addition to a finding of special circumstances, have supported the exercise of the power in s 66 for the making of an ICO, did not dictate that an ICO was the appropriate sentencing outcome. Consistent with the obligation in s 66(3) that his Honour also take into consideration the purposes of sentencing in s 3A of the Sentencing Act and any relevant common law sentencing principles, it is clear that in declining to make an ICO the objective seriousness of the applicant's offending and the principles of general deterrence (being amongst the mandatory considerations his Honour was obliged to consider under s 66(3) in deciding whether the power to make the ICO should be exercised) overwhelmed other considerations that were in play.
In the result, the complaint that his Honour's approach to s 66 constituted a sentencing error has not been made out.

Endnotes

(2017) 96 NSWLR 633; [2017] NSWCCA 284.
(2011) 244 CLR 120; [2011] HCA 39.
Hunter v R [2011] NSWCCA 141 at [45] (Adams J); see also Khoury v R [2011] NSWCCA 118 at [75]-[76] (Simpson J, citing R v Georgopoulos [2010] NSWCCA 246 at [32] (Howie AJ)).
Thomas v R [2019] NSWCCA 88 at [67] (Price J); Ali v R [2010] NSWCCA 35 at [33] (Johnson J).
Mulato v R [2006] NSWCCA 282 at [46] (Simpson J); Salafia v R [2015] NSWCCA 141 at [90] (Wilson J).
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54.
R v Pullen [2018] NSWCCA 264 at [87], [89] (Harrison J).
R v Pullen [2018] NSWCCA 264 at [87], [89] (Harrison J).
[2019] NSWCCA 173.
[2019] NSWCCA 201.
Gommesen v R [2012] NSWCCA 226 at [37]-[38].
Postiglione v The Queen (1997) 189 CLR 295 at 301; [1997] HCA 26 (Dawson and Gaudron JJ).
(2011) 244 CLR 462; [2011] HCA 49 at [31] (French CJ, Crennan and Kiefel JJ).
Postiglione v The Queen (1997) 189 CLR 295 at 323 (Gummow J), at 338 (Kirby J).
Lowe v The Queen (1984) 154 CLR 606 at 609; [1984] HCA 46 (Gibbs CJ).
R v Prasad, Krishnan, Prakash & Milford [2000] NSWCCA 539 at [30] (Howie J); R v Zamagias [2002] NSWCCA 17 at [32] (Howie J).
[2018] NSWCCA 2 at (Payne JA, R A Hulme and Garling JJ). 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: 18 October 2019

Crime (Sentencing Procedure) Act 1999(NSW)

Headnote [This headnote is not to be read as part of the judgment] The applicant pleaded guilty to an offence of knowingly take part in supply of a prohibited drug, namely 140 grams of cocaine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). He was sentenced to 2 years imprisonment, with a non-parole period of 1 year. The applicant sought leave to appeal against sentence on four grounds: (1) the sentencing judge erred in assessment of the objective seriousness of the offence; (2) the sentencing judge failed to have regard to protection of the community per s 66 of Crime (Sentencing Procedure) Act 1999 (NSW) in refusing to order imprisonment by intensive correction order; (3) the applicant has a justifiable sense of grievance regarding parity of his co‑offender's sentence; and (4) the sentence was manifestly excessive. The Court granted leave to appeal, but dismissed the appeal, holding: (Per Brereton JA, Hoeben CJ at CL and Fullerton J agreeing) (i) Assessment of objective seriousness is a matter for the sentencing judge, in respect of which there must be a House v The King error (at [40]). It was open to his Honour to find the offence was in the mid‑range (at [45]-[50]). Ali v R [2010] NSWCCA 35; Mulato v R [2006] NSWCCA 282; Salafia v R [2015] NSWCCA 141; Thomas v R [2019] NSWCCA 88 applied (Per Fullerton J, Hoeben CJ at CL agreeing, Brereton JA contra) (ii) Community safety is not a mandatory consideration in sentencing under s 66(1) such that it should dominate other broader sentencing principles (at [88]), nor was the sentencing judge required to give reasons for concluding that a sentence of full-time custody was more appropriate than an ICO (at [90]). (Per Brereton JA, Hoeben CJ at CL and Fullerton J agreeing) (iii) There was sufficient justification for the differences between sentences (at [65]). (Per Brereton JA, Hoeben CJ at CL and Fullerton J agreeing) (iv) The sentence was not unreasonable or plainly unjust in the circumstances (at [69]).

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