Mourtada v R

(a) available powers

1. The power to make an intensive correction order is to be found in s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Procedure Act"), which provides: 7 Intensive correction orders (1) A court that has sentenced an offender to imprisonment in respect of 1 or more offences may make an intensive correction order directing that the sentence or sentences be served by way of intensive correction in the community. (2) If the court makes an intensive correction order directing that a sentence of imprisonment be served by way of intensive correction in the community, the court is not to set a non-parole period for the sentence. (3) This section does not apply to an offender who is under the age of 18 years. (4) This section is subject to the provisions of Part 5. Note - Among other matters, Part 5 provides that a single offence cannot be the subject of an intensive correction order if the imprisonment imposed exceeds 2 years, and that multiple offences cannot be the subject of an intensive correction order or orders if the imprisonment imposed exceeds 3 years.
2. Since the repeal of the Commonwealth Prisoners Act 1967 (Cth), there has been a wholesale evisceration of the principle that federal offenders are to be sentenced in accordance with the law applicable in the state or territory in which they are convicted, but it has not been entirely abandoned. Part 1B of the Crimes Act [5] is almost, but not completely, a comprehensive code, now with some 100 sections.
3. The manner in which the laws of a state could be applied in federal jurisdiction was identified by the High Court in Hili v The Queen: [6] "[21] Of their own force the laws of the States with respect to the sentencing of offenders could have no operation with respect to the sentencing of offenders against laws of the Commonwealth. [7] Any relevant operation is by reason of a federal law which 'picks up' State law. By operation of s 68 of the Judiciary Act 1903 (Cth), some State and Territory laws in relation to the sentencing of offenders are picked up and applied when a court, exercising federal jurisdiction conferred by s 68, sentences a federal offender. [8] But, to the extent to which Pt IB of the Crimes Act otherwise provides, State and Territory laws in relation to the sentencing of offenders are not picked up. As explained in Putland v The Queen, [9] s 68(1) of the Judiciary Act is 'to be read in the sense it would have if, as a matter of express statement rather than implication, there was a qualification for provision otherwise made from time to time by the laws of the Commonwealth'."
4. As the joint reasons in Hili continued, in relation to Pt 1B, Div 4: "[22] Of most immediate relevance to the first of the questions that is to be considered in these applications (the question of 'norm' or starting point) it is to be observed that State and Territory provisions relating to the fixing of the period an offender must serve in prison, before being released, or eligible for release, are not picked up by s 68(1). Division 4 of Pt IB of the Crimes Act, concerning the fixing of non-parole periods and the making of recognisance release orders with respect to federal offenders, makes exhaustive provision for the subject with which it deals. Because it makes exhaustive provision for that subject, State or Territory laws relating to the fixing of non-parole periods are not picked up by, and therefore are not applied by, s 68(1) of the Judiciary Act."
5. Relevantly for present purposes, a similar observation (as to the exhaustive nature of Div 4) may be applicable to Div 5, headed "Conditional release on parole or licence". Subdivision D within Div 5 contains a number of provisions relating to discharge of offenders without proceeding to conviction, and conditional release of offenders after conviction: ss 19B and 20. The exhaustive nature of the subdivision, which effectively operates in place of the generality of s 68 of the Judiciary Act, is confirmed by s 20AB which picks up specific sentencing alternatives, relevantly in the following terms: 20AB Additional sentencing alternatives (1) A court may pass a sentence, or make an order, in respect of a person convicted before the court in a participating State or participating Territory of a federal offence, if: (a) subsection (1AA) applies to the sentence or order; and (b) under the law of the State or Territory, a court is empowered to pass such a sentence, or make such an order, in respect of a State or Territory offender in corresponding cases; and (c) the first-mentioned court is: (i) empowered as mentioned in paragraph (b); or (ii) a federal court. (1AA) This subsection applies to a sentence or order that is: (a) known as any of the following: … (iii) a community correction order; … (viii) a good behaviour order; (ix) an intensive correction order; (x) an intensive supervision order; (xi) a sentence of periodic detention or a periodic detention order; (xii) a sentence of weekend detention or a weekend detention order; (xiii) a work order; or (b) similar to a sentence or order to which paragraph (a) applies; or (c) prescribed for the purposes of this subsection. (1A) Where the law of a participating State or a participating Territory requires that before passing a sentence, or making an order, of the kind referred to in paragraph (1)(b) a court must first pass another sentence or make another order (whether or not that other sentence or other order is suspended upon the making of the first-mentioned sentence or order), then, a court is not required, before passing or making that first-mentioned sentence or order in respect of a person convicted by that court for a federal offence, to pass that other sentence or make that other order. (1B) A court is not precluded from passing a sentence, or making an order, under subsection (1) only because the court is empowered under section 20AC, in relation to a person who has failed to comply with such a sentence or order, to take action that is, or may be, inconsistent with action that, under the law of a participating State or participating Territory, a court of that State or Territory is empowered to take for such a failure by a State or Territory offender. (2) … (3) Where a sentence or order referred to in subsection (1) is passed or made under that subsection in respect of a person convicted in a State or Territory of a federal offence, the provisions of the laws of the State or Territory with respect to such a sentence or order that is passed or made under those laws shall, so far as those provisions are capable of application and are not inconsistent with the laws of the Commonwealth, apply, by virtue of this subsection, to and in relation to the sentence or order passed or made under subsection (1). (4) …
6. Importantly for present purposes, s 20AB(1AA)(a)(ix) refers to "an intensive correction order". An order of the kind identified in s 7 of the Sentencing Procedure Act is therefore available in the exercise of federal jurisdiction. There are however qualifications. First, the effect of s 20AB(1A) is that whilst, pursuant to s 7, the court is required first to sentence an offender to imprisonment, such a sentence is not required to be imposed in relation to a federal offender. While the removal of a requirement to impose another sentence first is not a denial of the power to take that step, the power must in fact be located in some other provision of federal law, or a state law picked up by a federal law. More troubling, however, is the implication that a sentence of imprisonment is not a necessary element of a law picked up by s 20AB(1AA). Yet, that there be a sentence of imprisonment is an essential precondition to the engagement of s 7. [10] Absent such a sentence, a state court will have no power to make an intensive correction order. An intensive correction order is treated for the purposes of the Sentencing Procedure Act as a "custodial sentence", as indicated by the heading to Pt 2, Div 2 of the Sentencing Procedure Act, within which s 7 is located. That characterisation is confirmed by s 7(2) which provides that the court is "not to set a non-parole period for the sentence." (On one view, that raises an anomaly: s 44 requires that "when sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence": s 44(1).)
7. There are other issues. Section 7(4) provides that the section is "subject to" the provisions of Pt 5 of the Sentencing Procedure Act. Part 5 contains ss 64-73B. Relevantly for present purposes, because it was said that the trial judge failed to comply with this provision, s 66 provides: 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.

(b) challenge to sentence - failure to address s 66 (grounds 1 and 2)

1. The applicant's submission was that the trial judge, to the extent that he considered an ICO at all, did not comply with the obligation imposed by s 66 of the Sentencing Procedure Act. Counsel at the sentencing hearing having expressly submitted that an ICO would be an appropriate order, the sentencing judge was obliged to consider making an ICO and therefore, it was said, to address s 66.
2. There is no doubt the sentencing judge understood that an ICO had been sought and had considered the possibility. At the end of the hearing on 26 August 2020, having imposed sentences on the applicant and five co-offenders, Mr Ayache, who was appearing for the applicant, clarified the release date, to which the judge replied, "[h]is release is whatever is 14 months and 3 weeks from today." [11] The following exchange then took place between Mr Ayache and the bench: [12] "AYACHE: Your Honour one last point, I only raise it because I don't want to be criticised if I receive instructions to take the matter somewhere else. Has your Honour considered the matters in Section 66 of the Crimes (Sentencing Procedure) Act in terms of the submission made for an ICO, and protection of the community? HIS HONOUR: Yes. Basically what I said at the beginning of the proceedings was that all parties except for Abbas El Zein contended for sentences served in the community. For a couple of people, that succeeds. For the balance and I've obviously considered those exercises in working out on whom it was appropriate to impose an Intensive Corrections Order. So even sentences that fall within the sentencing power of the Intensive Corrections Regime which is basically these three gentlemen in the dock and potentially Mr Jomaa I just thought the objective seriousness of the matters were such that they needed to be served by way of full-time imprisonment for the purposes of general and specific deterrence. AYACHE: Please the Court. That is why I raise it because it was in that three year period. HIS HONOUR: No I'm glad you did. Yes all right. AYACHE: Just so I can let my client know. HIS HONOUR: Well that was part of my process, maybe I didn't expose that reasoning but it's certainly reasoning that I conducted as will be seen by the array of different sentencing dispositions. All right thanks for raising those things Mr Ayache. It's important to be careful."
3. Ground 1 in the notice of appeal alleged that the judge failed to apply s 66 when deciding whether to make an ICO. The ground assumed that, in picking up the power under State law to impose such a sentence, s 20AB also picked up procedural steps governing the operation of the State provision. The Director did not challenge that assumption and it should be accepted. There is then a factual question as to whether the judge had regard to the considerations set out in s 66.
4. The context for this submission is important. The sentencing proceedings involved seven offenders, each of whom was an offender with one or more others, but not all of whom were co-offenders on each offence. The proceedings continued over four days, being 30 September, 1 October, 2 October and 12 December 2019. The judgment was delivered over three days, being 20, 21 and 26 August 2020. One of the co-offenders (Jomaa) was sentenced on 25 September, almost exactly a year after the sentencing proceedings commenced.
5. The following points should be made with respect to the exchange with Mr Ayache set out above. First, the suggestion that the judge may not have considered the possibility of an ICO, in response to the submissions made to him, is flatly contradicted in the course of the exchange. Secondly, the reference in Mr Ayache's question to consideration of s 66 of the Sentencing Procedure Act was the first reference specifically to s 66 in the course of the sentencing proceedings. [13] Thirdly, it was accepted that there was one party for whom no submission was made that the sentence be served in the community, and that ICOs had been given to other co-offenders, though not all. As noted, Mr Jomaa was not sentenced at the same time, but a month later. In sentencing him, the judge stated: [14] "I also need to make it explicit in relation to Mr Jomaa's case as I took into account for anyone who was imprisoned with a length of sentence that would have permitted the Court to consider dealing with the matters by way of an Intensive Corrections Order, that considering the test of s 66(1) of the Crimes (Sentencing Procedure) Act and the objective seriousness of the offending, I am not persuaded that a sentence served pursuant to an Intensive Corrections Order would properly do the work of general deterrence and punishment for purposes of this sentencing exercise. So that, although s 17A of the Criminal Code provides restraint in terms of sentence of imprisonment being the last possible resort, I am persuaded in Mr Jomaa's case that that is appropriate." [15]
6. The manner in which the judge dealt with Mr Jomaa is consistent with his observation to Mr Ayache that "the objective seriousness of the matters were such that they needed to be served by way of full-time imprisonment for the purposes of general and specific deterrence." Ground 2 identified error in that observation. Such considerations, it was submitted, are relevant to the decision as to whether a sentence of imprisonment is required and as to the length of such a sentence. To base a decision not to impose an ICO on the same considerations is to "double-count" them.
7. The Court has in the past grappled with the difficulties in understanding how s 66 of the Sentencing Procedure Act operates. There are three points which may briefly be made in this regard. First, the power contained in s 7 of the Sentencing Procedure Act is said to be "subject to" the provisions of Pt 5, which include s 66: s 7(4). Secondly, although "community safety" is required to be the "paramount consideration" when deciding whether to make an ICO, it appears that all other sentencing principles must also be taken into account: s 66(3). Furthermore, the consideration of "community safety" requires an assessment of whether full-time custody or an ICO "is more likely to address the offender's risk of reoffending": s 66(2). The question of specific deterrence must play an important role in that consideration.
8. Thirdly, and least importantly for present purposes, there have been different views as to how s 66 requires "community safety" to operate. In R v Fangaloka [16] I noted that on one reading of s 66, "unless a favourable opinion is reached" in assessing whether such an order would be more likely to address the risk of reoffending, "an ICO should not be imposed": at [63]. Subsequently, that has been taken to be the statutory construction preferred in Fangaloka. [17] No doubt the judgment could have been more clearly expressed, but the view accepted at [65]-[66] did not include the proposition that a positive favourable opinion was required before an ICO should be imposed. Rather, a more nuanced approach was adopted to the weighing of the various considerations required to be taken into account under s 66. At [66] the reasoning noted that the purpose of s 66 was "to ensure that the court does not assume that full-time detention is more likely to address a risk of reoffending than a community-based program of supervised activity." The sentencing court was not required to favour an ICO over full-time custody, but it was required to have specific regard to community protection and to bear in mind that short sentences were not necessarily effective as a means of deterring further offending.
9. Relevantly for present purposes, there was no error on the part of the sentencing judge in having regard to specific deterrence in assessing the particular purpose of community protection. Further, there is no basis in s 66 to disregard other sentencing principles, including the need for general deterrence. There is no doubt that an ICO involves a significant element of leniency, as compared with full-time custody, and, if the sentencing judge determines that a period of full-time custody is required to ensure the offender is adequately punished for the offence, a matter with respect to which general deterrence is an available consideration, there can be no error in taking that sentencing purpose into account. Although without specific reference to the language of s 66, as counsel for the applicant observed in the course of oral submissions, the relevant matters were all addressed. No relevant error was therefore identified in grounds 1 and 2 as pleaded.
10. In oral argument, senior counsel submitted that ground 2 could be stated somewhat differently, as a complaint of inadequate reasons. The same issues were said to arise, namely that the judge did not address the obligation in terms reflecting the requirements of s 66, and therefore the offender did not know whether submissions made to the sentencing judge had been properly considered.
11. With respect, the reformulation of the ground does not affect the outcome. The substantive matters raised in the course of the submissions were addressed by the sentencing judge; the phrase "community protection" did not appear in those submissions. It follows that no complaint can now be made that the judge did not, in the sentencing judgment, use that language. If, as the judge explained, some period of full-time custody was warranted, there was no room for the imposition of an ICO, although there was ample opportunity to suspend part of the sentence by the grant of a recognizance release order, as happened.

(c) the issue of disparity

1. The issue of parity (or unjustifiable disparity) was addressed by reference to three co-offenders - Cobb, Paul and Chahine.
2. There were two problems with the applicant's approach to the question of parity. The first is that the applicant's aggregate sentence was not imposed for a single offence, but for two offences; one was the "US forces postal service offences", the other the "Oporto conspiracy". Without seeking to assert error, senior counsel for the applicant expressed some doubt as to the power to grant a recognizance release order (a Crimes Act power) with respect to a sentence imposed by reference to a power conferred by state law. As the state law only applied by virtue of the Judiciary Act, there is no need to pursue that concern, but the fact that the aggregate sentence related to two offences caused a difficulty in comparing the sentences imposed on co-offenders.
3. Paul and Cobb processed mail for the US military. Their role was an essential part of the scheme to import tobacco products, and was so described by the sentencing judge. With respect to those offences, the applicant was identified as a principal who exploited the breaches of trust by Paul and Cobb. Although Hunt DCJ did not sentence Paul and Cobb, he referred to their sentences and compared their circumstances with those of the applicant. [18] Paul and Cobb were not co-offenders with respect to other charges. However, Abbas El Zein and Yehia Assi were co-offenders on both charges involving the applicant. Abbas El Zein was the co-offender who had not sought an ICO; neither he nor Mr Assi received an ICO.
4. No basis was identified by the applicant for interfering with the judge's evaluative judgments as to the respective levels of culpability and the assessment of the circumstances personal to each offender. Leave to appeal should be refused with respect to this ground.

Conclusions

1. For the reasons set out above, the Court should make the following orders: 1. Grant the applicant leave to appeal against his sentence on grounds (1) and (2). 2. Refuse leave to appeal with respect to ground (3). 3. Dismiss the appeal.
2. ADAMSON J: I have had the benefit of reading the reasons of Basten JA in draft. I agree with the orders proposed by his Honour and, largely, with his reasons.
3. I would prefer not to express a view as to the wider topic of the extent to which State laws are picked up when State Courts are imposing sentences for Federal offences since, as Basten JA has noted, specific provision is made for intensive correction orders (ICOs) in s 20AB(1AA)(a)(ix) of the Crimes Act 1914 (Cth).
4. I agree with his Honour's reasons with respect to grounds 1 and 2. I wish to add the following. Section 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act) requires a sentencing judge to have regard to certain considerations when considering whether to grant an ICO. These considerations comprise: community safety; whether making the order or serving the sentence by way of full-time detention is more likely to address the offender's risk of re-offending; the purposes of sentencing in s 3A of the Sentencing Procedure Act; and "any relevant common law sentencing principles".
5. For the purposes of considering whether to grant an ICO, each of these matters is a mandatory relevant consideration, in the sense considered by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39-40; [1986] HCA 40. However, it does not follow from the requirement that those matters be considered, that each must be specifically addressed in the reasons given by the sentencing judge. The reasons must address the submissions made by the parties and indicate that the sentencing judge has applied the law correctly.
6. In the present case, his Honour considered that the objective seriousness of the offending and the purposes of general and specific deterrence required the sentence to be served by full-time detention. His Honour's reasons were sufficient to identify the bases on which an ICO was inappropriate. In these circumstances, it was not necessary for his Honour to go through s 66 of the Sentencing Procedure Act and address each consideration, as if each was an item on a list to be ticked off. No assumption is warranted that the sentencing judge was not cognisant of the wording of s 66 or the importance of the matters required to be considered. Indeed, it is plain from the sentencing judgment, when read as a whole, that his Honour was aware of, and applied, s 66 of the Sentencing Procedure Act and concluded that an ICO was warranted in respect of some offenders, but not in respect of the applicant.
7. I agree with Basten JA's reasons with respect to ground 3.
8. CAMPBELL J: I have had the benefit of considering the reasons of Basten JA in draft. I agree with the orders his Honour proposes and in substance with his Honour's reasons.
9. I adhere to the views I expressed in Blanch v R [2019] NSWCCA 304, for present purposes, particularly at [60] and [69]. But I agree with Basten JA (at [20]) that grounds 1 and 2 asserting a failure of the sentencing judge to address s 66 raised a factual question for the consideration of this Court "as to whether the judge had regard to the considerations set out in s 66". I also agree that this question is to be determined with due regard being given to the complexity of the sentencing task required of his Honour, pithily summarised by Basten JA at [21]. Mr Ayache's question (see [19] above) expressly and squarely raised consideration of the s 66 "matters". His Honour answered in the affirmative and succinctly explained his decision not to permit the sentences passed to be served by way of ICO. His Honour's response to the matter appropriately raised by Mr Ayache should be taken at face value. I infer that while not referring to the section expressly in his reasons his Honour took into account each of the matters he was required to direct himself to by each of the subsections of s 66. The matter is factually different from Blanch.
10. I am not convinced that his reasons when sentencing Mr Jomaa about one month later are available for consideration by this Court. If my hesitation is misplaced, the passage extracted by Basten JA at [22] bolsters the inference I am otherwise prepared to draw.
11. I adhere to the view I expressed in Blanch that it is not necessary for a sentencing judge to refer to the provisions of s 66 in express terms, provided it appears from his or her reasons that he or she has taken each of its mandatory relevant considerations into account.

Endnotes

1. Malcolm CJ, Murray and White JJ, (unrep, 9 October 1992) available at: https://www.austlii.edu.au/au/cases/wa/WASC/1992/432.pdf.
2. Selimoski, pp 10-11.
3. (2004) 218 CLR 174; [2004] HCA 8.
4. See, eg, Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301 at [141]-[146] (Price J).
5. Introduced by Crimes Legislation Amendment Act (No. 2) 1989 (Cth), s 6.
6. (2010) 242 CLR 520; [2010] HCA 45 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
7. Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 352 [35]; Solomons v District Court (NSW) (2002) 211 CLR 119 at 134 [21].
8. Putland v The Queen (2004) 218 CLR 174.
9. (2004) 218 CLR 174 at 189 [41].
10. See also the requirement of Pt 5 that the term of the intensive correction order be the same as the term of imprisonment in respect of which the order is made: s 70.
11. Tcpt, 26/08/20, p 33.
12. Tcpt, pp 33-34.
13. CCA Tcpt, 04/08/21, p 14(11).
14. Tcpt, 25/09/20, p 3.
15. The reference to s 17A should have been to that provision in the Crimes Act.
16. [2019] NSWCCA 173.
17. See Casella v R [2019] NSWCCA 201 at [107]-[108] (Beech-Jones J).
18. Sentencing judgment, 26/08/20, pp 5-6. 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: 03 September 2021