Khanat v R [2024] NSWCCA 41 | Case summary

Court of Criminal Appeal (NSW)|2024-02-21|Before: Wilson J, Ierace J, Cavanagh J

Background

There were agreed facts on sentence. His Honour's remarks on sentence are based on these agreed facts.
On 7 July 2022, the police executed a search warrant at the applicant's premises. Police located two cartons of Al Fakher branded tobacco products. The applicant said that he had purchased these cartons from a person some months earlier. The applicant denied that there were any more tobacco products on his property.
Upon further searching, the police located illicit cigarettes and tobacco products in the garage and a large quantity of tobacco products in the storage shed on the property (2.1 tonnes). The applicant told the police that he had not been in the shed for two or three months.
On 24 October 2022, a tobacco expert examined samples and identified them as tobacco products, specifically being flavoured hookah tobacco, cigarettes and looseleaf tobacco. Other than the looseleaf tobacco, each of the tobacco products was commercially packaged. Two of the wrapped packages containing loose leaf dried tobacco found in the garage of the property bore a postal label suggesting that they emanated from China.
A total of 2,186,88 kilograms of tobacco products and 29,020 cigarettes were seized from the applicant's property. The customs duty avoided was $3,553,209.09.
During the search, the police also located a 6 mm airsoft calibre unknown manufacturer repeating air pistol, which was located in a safe at the residential premises. The applicant was not a holder of a relevant licence or permit for the pistol. This was the subject of the Firearms Act offence.

Objective seriousness

The sentencing judge observed that, although not determinative, the quantity of tobacco and loss of revenue was very significant. This was relevant to the assessment of the objective seriousness of the offending, as was the applicant's role in the offending conduct.
His Honour referred to the Sentencing Assessment Report, the content of which suggested that the applicant sought to blame another person, denying knowledge of the legal implications of storing the tobacco. As his Honour said, this was not tested and there was simply no evidence apart from the applicant's untested assertions that someone else was involved in the possession of the tobacco.
His Honour was satisfied that the applicant's recklessness as to whether the goods were imported with intent to defraud the revenue was high. His Honour also accepted that the applicant engaged in the offending for financial gain although he was not able to quantify the amount of financial gain.
His Honour considered that the offence was a serious offence of its kind.
In respect of the Firearms Act offence, his Honour considered that the offence was towards the bottom of the range.

Subjective factors

The applicant did not give evidence during the sentence proceedings, but the following material was before the sentencing judge: 1. A Sentencing Assessment Report dated 9 June 2023; 2. A psychological report by Sevcan Eminov dated 20 April 2023; 3. Letters of support from family members and friends; and 4. Certificates of appreciation from certain charities.
The applicant was born in 1984 and was 39 years of age at the time of sentence. He had no criminal history, which the sentencing judge found entitled him to leniency. He migrated to Australia in 2004 from Lebanon - his father and sister had died in the war in Lebanon. The applicant settled in Australia where he met his now wife, and they went on to have four children.
In Australia, the applicant initially worked in the building industry and as a truck driver before starting a small convenience store which he had been operating since 2012. He worked very hard - seven days a week.
The applicant told the psychologist he saw for the purposes of sentencing that he found his initial six days in custody very distressing. He was concerned about the well-being of his wife and children. The psychologist found him to be within the normal range of symptoms for depression but at an extremely severe range for anxiety.
His Honour accepted that the applicant had shown remorse and contrition, although that appeared to be primarily focused upon the consequences of his offending for his wife and family. His Honour did not accept that the applicant had shown any real insight into the damage the offending does to the revenue of the Commonwealth.
His Honour found that no sentence other than a sentence of imprisonment was appropriate in respect of the tobacco offence, observing that the applicant's counsel and the Crown accepted this. His Honour then referred to the importance of general deterrence and concluded that a significant sentence must be imposed for the Customs Act offence. His Honour considered that the appropriate starting point was 2 years and 6 months. After applying the 25% discount on account of the plea of guilty, his Honour fixed the term of imprisonment at 1 year and 10 months.
His Honour then went on to consider "whether it is appropriate to extend to you the leniency of serving the sentence in the community".
As his Honour's consideration of this issue forms the basis of the appeal, I will set out in full his Honour's remarks: "The paramount consideration in determining how the sentence is to be served is community safety. Here, I have weighed up your lack of a criminal record and prospects for rehabilitation in considering the issue of community safety. I consider in the circumstances here that your risk of re-offending as being low is more likely to be addressed if you are allowed to serve the sentence in the community. However, in my opinion, general deterrence must be given significant weight in the exercise of the sentencing discretion here, because of the serious nature of the offending and its prevalence in the community. When that is done, I have come to the conclusion that the sentence is to be served by way of full-time custody."

The applicant's contentions

The applicant submits that, having regard to the approach set out in Stanley, the sentencing judge erred in not finding that the term of imprisonment should be served in the community by way of an ICO.
The applicant's primary submission was that, having made a positive finding that the risk of reoffending was low and that that risk was more likely to be addressed if the applicant was allowed to serve the sentence in the community, the sentencing judge was obliged or mandated to impose an ICO, having regard to s 66(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Act").
The applicant's alternative submission was that, even if there remained some discretion not to impose an ICO, having regard to the positive finding as to the risk of reoffending, his Honour erred in giving greater weight to general deterrence, thereby making community safety subordinate to general deterrence.
In the end, the applicant moved away from his primary submission, accepting that there may be some circumstances in which, even despite the finding of the type made, an ICO may not be ordered. However, the applicant submitted that those circumstances would not be usual and must necessarily involve giving weight to a number of different sentencing factors which when combined might detract from the appropriateness of making an ICO (contrary to the sentencing judge's approach).
The Crown submits that the appeal should be dismissed for three principal reasons being: 1. The sentencing judge correctly considered the importance of general deterrence, even though it was a subordinate consideration to community safety, in deciding whether a sentence of full time imprisonment was appropriate. General deterrence was a significant aspect of sentencing for the offence. 2. The sentencing judge was not obliged to impose an ICO only because of a positive finding about the safety of the community, and the safety of the community was the paramount consideration. 3. The sentencing judge's task was an evaluative one, which required giving weight to all the purposes of sentencing, even though one of those purposes was the paramount consideration. The question of what weight was to be given to each of the purposes of sentencing was a matter for the sentencing judge. There was no error in the exercise of the sentencing judge's discretion.
The import of the Crown's submission is that his Honour's remarks should not be interpreted to mean that he did not give paramount consideration to community safety and that a sentencing judge is not obliged to impose an ICO only because of the positive finding about community safety. The exercise remains evaluative and discretionary.

Consideration

Section 7 of the Act provides for the making of an ICO.
The procedures for imposing an ICO are then set out in part 5 of the Act. The part applies in circumstances in which a court is considering or has made an ICO (see s 64).
Sections 67 and 68 specify the circumstances in which an ICO is not available, having regard to certain types of offences and where the term of imprisonment imposed exceeds two years.
This appeal relates to the proper application of s 66, which is in the following terms: 66 Community Safety and other considerations (1) Community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender. (2) When considering community safety, the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending. (3) When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant.
In Stanley, the High Court considered an appeal from the New South Wales Court of Appeal all the way from the Local Court relating to whether Ms Stanley should have received an ICO in respect of sentencing for firearms offences. The District Court dismissed her appeal. Ms Stanley then appealed to the New South Wales Court of Appeal seeking judicial review on the basis that the District Court did not properly consider s 66(2) of the Crimes (Sentencing Procedure) Act and that such an error was jurisdictional in nature. The Court of Appeal by majority (per Bell P (as his Honour then was), Basten JA, Leeming JA and Beech-Jones J (as his Honour then was)) dismissed the appeal.
By majority, the High Court (per Gordon, Edelman, Steward and Gleeson JJ) allowed the appeal, finding error in the determination, having regard to s 66(2) of the Act and accepting that the errors were jurisdictional in nature.
In coming to their view, the majority set out the proper approach to the assessment of whether an ICO should be made. The focus of the argument in this matter was on paragraphs [72] to [77], which I have inserted below: "[72] There was no dispute before this Court that s 66 imposes specific mandatory considerations upon the decision maker to make, or refuse to make, an ICO. Section 66(1) requires the court to treat community safety as the "paramount consideration". In the context of s 66(2), community safety principally concerns the possible harms to the community that might occur in the future from the risk of reoffending by the offender. The issue is not merely the offender's risk of reoffending, but the narrower risk of reoffending in a manner that may adversely affect community safety. [73] The identification of community safety in s 66(1) as the "paramount" consideration also indicates that s 66 is concerned with an aspect of the sentencing task that requires the sentencing court to have a particular and different focus at the third stage of the three-step process described earlier. When the court is deciding the discrete question whether or not to make an ICO, community safety is the consideration to which other considerations are to be subordinated, although other considerations must or may be taken into account as prescribed by s 66(3). [74] Section 66(2) explains how the sentencing court must engage with the paramount consideration of community safety. For the purpose of addressing community safety, s 66(2) requires the sentencing court to undertake a task of assessing the possible impacts of an ICO or full-time detention on the offender's risk of reoffending. Section 66(2) gives effect to Parliament's recognition that, in some cases, community safety will be better promoted by a term of imprisonment served in the community than by full-time detention. Section 66(2) is premised upon the view that an offender's risk of reoffending may be different depending upon how their sentence of imprisonment is served, and implicitly rejects any assumption that full-time detention of the offender will most effectively promote community safety. Thus, s 66(2) requires the sentencing court to look forward to the future possible impacts of the sentence of imprisonment, depending upon whether the sentence is served by way of full-time detention or by way of intensive correction in the community. [75] The assessment required by s 66(2) is not determinative of whether an ICO may or should be made. To the contrary, as is plain from s 66(3), the assessment is required for the purpose of addressing community safety as the paramount, but not the sole, consideration in deciding whether or not to make an ICO. Thus, the power to make an ICO requires an evaluative exercise that treats community safety as the paramount consideration, with the benefit of the assessment mandated by s 66(2). In that respect, the nature and content of the conditions that might be imposed by an ICO will be important in measuring the risk of reoffending. [76] That said, 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. There may be cases where a court cannot be satisfied whether serving a sentence by way of intensive correction in the community or serving a sentence in full-time custody would be more likely to address reoffending. In those cases, other factors will assume significance and will be determinative. On the other hand, there will be cases where a court concludes that serving the sentence by way of intensive correction in the community is more likely to address reoffending. [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." (citations omitted).
Unfortunately, the sentencing judge was not directed to Stanley in either written or oral submissions. His Honour did not refer to the decision (in an otherwise comprehensive sentencing judgment) and, at least on one view, may have adopted an approach consistent with some earlier statements by this court.
Prior to the High Court's consideration in Stanley, pt 5 and, in particular, s 66 had been the subject of considerable judicial consideration (see, for example, Mandranis v The Queen (2021) 289 A Crim R 260; Karout v The Queen [2019] NSWCCA 253; Casella v The Queen [2019] NSWCCA 201; R v Fangaloka [2019] NSWCCA 173 ("Fangaloka"); R v Pullen (2018) 275 A Crim R 509 ("Pullen")).
It is perhaps difficult to reconcile all of this Court's earlier statements about pt 5 and, specifically, s 66 with the majority judgment in Stanley. For example, in Fangaloka, Basten JA observed at [61]: "….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."
And again at [66]: "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."
Having said that, the observations of Harrison J (as his Honour then was) in Pullen at [86] and [89] and Simpson AJA in Mandranis at [50]-[51] remain apt.
In Pullen, his Honour said at [86]: "The Court must also have regard to, but is not bound by, any assessment report obtained as well as evidence from a community corrections officer: Crimes (Sentencing Procedures) Act, s 69. The prioritisation of the consideration of community safety as the "paramount consideration" necessarily means, however, that other considerations, including those enunciated in s 3A of the Act, become subordinate."
And then at [89]: "The result of these amendments is that in cases where an offender's prospects of rehabilitation are high and where their risk of reoffending will be better managed in the community, an ICO may be available, even if it may not have been under the old scheme. The new scheme makes community safety the paramount consideration. In some cases, this will be best achieved through incarceration. That will no doubt be the case where a person presents a serious risk to the community. In other cases, however, community protection may be best served by ensuring that an offender avoids gaol. As the second reading speech makes plain, evidence shows that supervision within the community is more effective at facilitating medium and long term behavioural change, particularly when it is combined with stable employment and treatment programs."
Stanley has been the subject of subsequent consideration by this Court in Zheng v R [2023] NSWCCA 64 ("Zheng") and Chan v R [2023] NSWCCA 206 ("Chan"). Indeed, between the hearing of this appeal and the delivery of this judgment, s 66 was again considered in AM v R [2024] NSWCCA 26 ("AM v R").
However, the issue raised by this appeal has not yet been determined, albeit it was the subject of comment by N Adams J in Chan at [145]-[150]. I will return to this.
In Zheng, after referring to Stanley and, in particular, the paragraphs to which I have just cited, Gleeson JA set out five points which his Honour said emerged from the joint judgment in Stanley as follows at [282]-[286]: "First, the power to make an ICO requires an evaluative exercise that treats community safety as the paramount consideration, with the benefit of the assessment mandated by s 66(2). The issue is not merely the offender's risk of reoffending, but the narrower risk of reoffending in a manner that may affect community safety: at [72], [75]. Second, s 66(2) is premised upon the view that an offender's risk of reoffending may be different depending upon how their sentence of imprisonment is served, and implicitly rejects any assumption that full-time detention of the offender will most effectively promote community safety: at [74]. Third, the nature and content of the conditions that might be imposed by an ICO will be important in measuring the risk of reoffending: at [75]. Fourth, the consideration of community safety required by s 66(2) is to be undertaken in a forward-looking manner having regard to the offender's risk of reoffending: at [74]. Fifth, while community safety is not the sole consideration in the decision to make, or refuse to make, an ICO, it will usually have a decisive effect unless the evidence is inconclusive: at [76]."
His Honour's fifth point is a direct reference to the opening sentence at [76] of Stanley.
The point of difference in this appeal is that the evidence was not inconclusive. The sentencing judge made a positive finding as follows: "I consider in the circumstances here that your risk of reoffending as being low is more likely to be addressed if you are allowed to serve the sentence in the community."
The applicant thus says that the conclusive or positive finding that his risk of reoffending was best addressed by serving his sentence in the community should have caused his Honour to order an ICO.
It is plain that his Honour considered that the imposition of an ICO should be viewed as a more lenient sentence than serving the term of imprisonment in custody. His Honour said so: "As the sentence is under two years, I have considered whether it is appropriate to extend to you the leniency of serving the sentence in the community."
The question of whether the degree of leniency attached to an ICO may be a relevant factor was taken up N Adams J in Chan. Her Honour stated at [139]-[140]: "There can be no doubt that imposing an ICO involves a degree of leniency. In Pullen Harrison J observed the following at [53]: 'Although an ICO ordinarily involves substantial punishment, it also reflects a significant degree of leniency: R v Pogson; R v Lapham; R v Martin (2012) 82 NSWLR 60; [2012] NSWCCA 225 at 84 [106]; Whelan v R (2012) 228 A Crim R 1; [2012] NSWCCA 147 at [120].' More recently, Basten JA observed the following in Tonga at [20]: 'Were an ICO not seen as a more lenient sentence than the same period served in custody, there would be no application for leave to appeal. Secondly, whether or not one thinks that the proposed supervision plan amounts to 'intensive correction', it would have been vastly less intrusive than a fulltime deprivation of liberty.'"
At [149], her Honour referred to the observations of Beech-Jones CJ at CL (with whom Fagan J and R A Hulme AJ agreed) in R v FF [2023] NSWCCA 186 as follows: "'[57] It follows that a complaint that a sentence ordered to be served by way of an ICO is manifestly inadequate will have to address the above process and, in respect of the third step, the reasons of the majority in Stanley at [71]−[77] concerning the application of s 66 of the Sentencing Act. There may be scope for argument about whether that reasoning precludes, or at least affects, a contention that a sentence is manifestly inadequate simply because it involves the sentence being served by way of an ICO as opposed to full-time custody. [58] It is not necessary to consider this further because the balance of these reasons is directed to the second step in the above process, namely, the assessment of the appropriate length of the sentence imposed. As I consider that the imposition on the respondent of any term of imprisonment of 3 years or less to be manifestly inadequate, it is not necessary to determine whether the fact the respondent's sentence was ordered to be served by way of an ICO is an additional factor why it is manifestly inadequate.' (Emphasis added)."
Her Honour then went on to say: "[150] I too am satisfied that there is scope for an argument that, following the reasons of the majority in Stanley at [71]-[77], a sentencing judge cannot decline to impose an ICO on an offender who otherwise would meet the tests in ss 66(1) and (2) on the basis that such a result would render the sentence too lenient. But, like Beech-Jones CJ at CL, I do not consider it necessary to determine that question to dispose of the present appeal. Nor was it the subject of any submissions at the hearing in this matter." [1]
As has often been said, and was again observed in Stanley at [59], there are three steps to be undertaken by a sentencing court prior to imposing a sentence of imprisonment under the Act, being: 1. First, determination that the threshold set out in s 5(1) is met, that is, that no sentence other than a term of imprisonment is appropriate; 2. Secondly, the sentencing judge must determine the appropriate term of imprisonment; and 3. Thirdly, the sentencing judge must consider whether or not to make an ICO (if the issue arises) having regard to any limitations in making an ICO, as set out in pt 5 div 2.
This process involves the application of instinctive synthesis of multiple factors at each stage (Stanley at [59]). Further, the power to make or refuse to make an ICO is discretionary (Stanley at [65]).
It is the third stage of that discretionary process which is the issue in this appeal. Of course, the fact that the process is discretionary does not mean the discretion is at large. The discretion must be exercised in accordance with the statutory provisions.
Having said that, it does not seem to me that anything said in Stanley leads to the conclusion that a positive finding that the risk of reoffending is best addressed by serving the sentence in the community mandates the ordering of an ICO. That is, I reject the applicant's primary submission that once the positive finding was made an ICO must necessarily have been ordered.
I say this for the following reasons.
Firstly, in Stanley (at [75]) their Honours stated that the assessment required by s 66(2) is not determinative of whether an ICO may or should be made. As required by s 66(3), when deciding whether to impose an ICO, the sentencing court must also consider the provisions of s 3A and any other relevant common law sentencing principles and may consider any other matters that the Court thinks relevant. The exercise is thus evaluative, albeit community safety must be treated as the paramount consideration.
Secondly, although the Court observed (at [76]) that community safety will usually have a decisive effect unless the relevant evidence is inconclusive, there is no suggestion that an ICO must be ordered consequent on a positive finding on addressing the risk of reoffending. It may usually have a decisive effect but that leaves open the possibility that there will be circumstances in which, even giving paramountcy to community safety and a positive finding on the risk of reoffending, an ICO may not be ordered.
The Court did not identify what those circumstances might be but left open the possibility that, having considered the matters referred to in s 66(3), the sentencing court may decline to impose an ICO, subject to having given paramountcy to community safety in its consideration.
Thirdly, the sentencing exercise is essentially discretionary. The sentencing court comes to a decision as to sentence through a process of instinctive synthesis. I do not take anything said in Stanley to be fundamentally altering that approach.
It follows that I do not accept that a positive or conclusive finding that the risks of reoffending are better addressed in the community mandates an order for an ICO.
Having said that, in my view, whilst the exercise remains discretionary, the proper application of s 66 (consistent with Stanley) does not permit the approach of the sentencing judge in this matter. The problem is that by referring only to general deterrence as the reason for declining to impose an ICO (as his Honour did in the second paragraph of the sentencing judgment to which I have referred to at [55] above), his Honour could not have given paramount consideration to community safety. He must be taken to have done what cannot be done, which was to elevate deterrence to a factor of greater importance than community safety. Indeed, using the expression in Stanley at [73], community safety has been subordinated to general deterrence.
His Honour must be taken to have considered that the imposition of an ICO would be too lenient, particularly having regard to the important sentencing factor of general deterrence. His Honour referred to the serious nature of the offending and its prevalence in the community, thereby emphasising the need for general deterrence.
It is difficult to accept that his Honour was giving paramount consideration to community safety in adopting this approach.
Paragraph [77] in Stanley is particularly relevant to this appeal. As was said, aspects such as specific and general deterrence will have been considered in deciding whether to impose a sentence of imprisonment before considering the imposition of an ICO.
Further, as the majority observed at [76], a conclusive or positive finding of the type made in this matter would usually be decisive.
It does not seem to me that there is anything unusual or exceptional about this matter. His Honour plainly considered that the ordering of an ICO would be too lenient, having regard to the important issue of general deterrence. The effect of his Honour's approach was to subordinate community safety to general deterrence, which was contrary to the approach set out in Stanley. In this regard, his Honour erred.
It is not necessary in this appeal to determine the circumstances in which, following a positive finding under s 66(2), an ICO may not be ordered. It is only necessary to say that having regard to the High Court's reference to such a positive finding being "usually decisive", there may be some circumstances in which the proper exercise of the discretion leaves open the possibility that an ICO should not be ordered. That may arise from a combination of relevant sentencing factors, still giving due paramountcy to community safety.
Error having been established; it is necessary to re-sentence (s 6(3) of the Criminal Appeal Act 1912 (NSW); Kentwell v The Queen (2014) 252 CLR 601 at [43]).

Re-sentence

There is no challenge to the findings of the sentencing judge either as to objective seriousness or the applicant's subjective features. I adopt those findings: see DL v The Queen (2018) 265 CLR 215 at [9]; Zheng at [267]; Turnbull v R [2019] NSWCCA 97 at [44]-[46].
The offending contrary to the Customs Act is serious offending of its kind. This is evident by the amount of customs duty avoided ($3,553,209) and the very significant quantity of tobacco involved. The applicant engaged in the offending conduct for financial gain. Like the sentencing judge, I am unable to accept that some other person was involved or that the tobacco products happened to be at the offender's premises because of an unknown third person.
For the purposes of re-sentencing, the applicant relies on an affidavit of his solicitor dated 9 February 2024, his own affidavit dated 1 February 2024 and an affidavit of his wife Suesan Khanat dated 8 February 2024. They refer to the family difficulties experienced subsequent to the applicant's incarceration and the work and courses the applicant has undertaken whilst in prison. I have regard to this material. At least in part, it serves to emphasise the applicant's prospects of rehabilitation and low risk of reoffending.
The offender has no criminal history. He has good prospects of rehabilitation. He has a long history of employment and good family support. He has expressed remorse. He has a strong subjective case.
Having said that, general deterrence must be given appropriate weight in the exercise of the sentencing discretion.
He is also entitled to the 25% discount on account of his plea of guilty.
Adopting the required three-step process (also as set out in Stanley): 1. I accept that no other sentence other than a sentence of imprisonment is appropriate in all the circumstances There was no suggestion to the contrary. An ICO is not an alternative to a term of imprisonment and I do not consider that at this stage of the process; 2. I must now determine the term of imprisonment, without regard to the way in which it might be served. I consider that the appropriate starting point for the sentence is 2 years and 4 months, which with the discount for the early plea would result in a sentence of 1 year and 9 months imprisonment. 3. I should now consider whether an ICO should be made in accordance with pt 5 of the Act.
In this regard, as set out in s 66(1) of the Act, community safety must be the paramount consideration in determining whether or not to impose an ICO. I adopt the sentencing judge's finding that the risk of reoffending is low having regard to all of the applicant's subjective circumstances. I consider that the applicant's risk of reoffending is best addressed if he serves his sentence in the community.
As required by s 66(3) of the Act, I have also considered the purposes of sentencing as set out in s 3A, and other relevant sentencing factors such as the importance of general deterrence. However, having regard to the paramountcy of community safety, I do not consider that those other relevant sentencing factors are such that an ICO should not be ordered. Community safety remains the paramount consideration and I am not at this point in the assessment considering whether the sentence is too lenient.
As set out in s 69, I must have regard to the content of any assessment report and information from any community corrections officer and any other information available that I consider necessary for the purposes of deciding whether to make an ICO.
The sentencing assessment report is dated 9 June 2023. Community Corrections considers that no conditions other than a supervision order are required to implement the recommended supervision plan. The report was obtained for the sentencing in the District Court. As was observed in Pullen at [80], it would be a "statutory absurdity" if the finalisation of this appeal was delayed for the purposes of obtaining a further report in circumstances in which there is unlikely to be any change.
As set out in s 71 of the Act, an ICO commences on the day on which it is made. In the circumstances, an ICO could only commence on the date of this judgment. It cannot be backdated to take account of the time spent in custody.
Yet, the applicant has already been in custody for a period of nearly 9 months. Whilst I am sentencing afresh, I am not doing so in a vacuum. As was observed most recently by Hamill J in AM v R at [46] (when considering a similar issue on resentence), it would be artificial not to take account of the fact that the applicant has already served 9 months of the sentence in prison.
Further, I am conscious that the applicant should not be worse off as a result of this appeal. This issue was addressed in Mandranis at [56].
In all of these circumstances, the orders I propose are that: 1. Leave to appeal is granted. 2. The appeal against sentence is upheld. 3. The sentence imposed in the District Court on 29 June 2023 is quashed and in lieu thereof: 1. The applicant is sentenced to imprisonment for a term of one year and nine months, backdated to commence on 22 June 2023 and expiring on 21 March 2025. 2. Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), the applicant is to be released on 21 March 2024 and will be subject to a recognizance in the sum of $500 without security to commence on the date of his release and to expire after two years on the following conditions: 1. That the applicant be of good behaviour, from the date of release. 2. That the applicant be subject to supervision by Community Corrections. 3. That the applicant obeys all reasonable directions of Community Corrections. 4. That the applicant does not travel overseas or interstate without the approval of Community Corrections.
The effect of the sentence is that the applicant will serve nine months in custody, having been in custody since 22 June 2023. He will be released on 21 March 2024 on a recognizance for two years and will be subject to the conditions I have imposed for a period of two years. If he breaches any of those conditions, he may be subject to further action.

Endnote

See also September 2023 Judicial Officers' Bulletin (Volume 35 No 8) 'Intensive Correction Orders in NSW after Stanley' by N Adams J in which her Honour posed the question "But what about the cases in which a sentencing court, when considering community safety (as the paramount consideration) is easily satisfied that an ICO is more likely to address the offender's risk of re-offending than serving the sentence by way of full-time detention? Is it still open to the court to decline to impose an ICO because such an option is considered too lenient having regard to other purposes of sentencing in s 3A of the Act?" (Emphasis in original). 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: 15 March 2024

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant sought leave to appeal the sentence imposed upon him in the District Court in Parramatta on 29 June 2023 in respect of an offence of possessing tobacco products being reckless as to whether they were imported, with intent to defraud the revenue contrary to s 233BABAD(2B) of the Customs Act 1901 (Cth). The applicant was charged following an investigation and search conducted by police on 7 July 2022 at the applicant's residence where a large quantity of illicit cigarettes (29,020) and tobacco products (2,186,88 kilograms) were found. The total customs duty avoided was $3,553,209.09. The applicant pleaded guilty to the offence and was sentenced to a term of imprisonment of 1 year and 10 months, commencing on 22 June 2023, with the applicant to be released on a recognizance order after 12 months on 21 June 2024. The total sentence expires on 21 April 2025. The sentencing judge considered whether the sentence should be served by way of an intensive corrections order ("ICO") having regard to Part V Division 2 of the Crimes (Sentencing Procedure) Act 1999 (NSW). As part of that assessment the sentencing judge made a finding that the risk of reoffending was best addressed if the applicant was allowed to serve his sentence in the community. However, his Honour went on to find that general deterrence must be given significant weight because of the serious nature of the offending and its prevalence in the community. His Honour then concluded that the sentence should be served by way of full-time custody. The applicant sought leave to appeal on two grounds, both related to the proper construction and application of s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) following the High Court decision in Stanley v Director of Public Prosecutions (NSW) (2023) 299 A Crim R 391; (2023) ALJR 107; [2023] HCA 3 ("Stanley"). His Honour was not referred to Stanley during the sentence proceedings. The issues arising on the appeal were: (i) Whether the sentencing judge was obliged or mandated to order an ICO after making a positive finding that community safety is best served by the offender serving the sentence in the community. (ii) Whether the sentencing judge erred in not ordering an ICO by subordinating community safety to considerations of general deterrence. The Court (per Cavanagh J, with Ierace J agreeing and Wilson J dissenting) allowed the appeal and resentenced the applicant. As to issue (i), per Wilson J at [24], Cavanagh J at [89], with Ierace J agreeing at [28]: A positive finding that the risk of reoffending was best addressed if the applicant served his sentence in the community does not mandate or require a sentencing court to order an ICO. The assessment remains discretionary, in accordance with the principles of sentencing and s 66 of the Crimes (Sentencing Procedure) Act. As to issue (ii), per Cavanagh J at [101], with Ierace J agreeing at [28]: The effect of his Honour's approach was to subordinate community safety to general deterrence, which was contrary to the approach set out in Stanley. The proper application of s 66 does not permit the approach taken by the sentencing judge. The sentencing judge plainly considered that the ordering of an ICO would be too lenient, having regard to the important issue of general deterrence. His Honour failed to give paramountcy to community safety. In this approach, the sentencing judge erred. Per Wilson J dissenting at [26]: In recognising the gravity of the offence, and the consequential need for a deterrent sentence, as required by s 66(3), the sentencing judge was right to decline to direct that the term of imprisonment imposed upon the applicant be served by way of an ICO.

Khanat v R

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