Shavali v R

Court of Criminal Appeal (NSW)|2022-06-24|Before: Brereton JA, Wilson J, Cavanagh J, James AM, Adams J

Judgment

BRERETON JA: The background to this application by Ali Shavali for leave to appeal from an aggregate sentence of 3 years imprisonment to be served by way of an Intensive Correction Order ("ICO"), which was imposed on him on 25 November 2020 and expires on 24 November 2023, is set out in the judgment of Wilson J, which I have had the benefit of reading in draft.
I agree with her Honour's reasons for concluding that Ground 1 (which complains that it is not apparent that the Court took into account the offender's pre-sentence custody when imposing the aggregate sentence of 3 years imprisonment) must succeed. While one might doubt that that the learned and experienced sentencing judge did not take into account the pre-sentence custody, of which he was plainly conscious and to which he referred, in precise detail, albeit in the context of considering the applicant's subjective case and antecedents, how it was taken into account does not appear, and the requirement "that it be demonstrated that it has been taken into account" was not satisfied. [1] Moreover, if it was taken into account in the only way which appears possible - by reducing what would otherwise have been an aggregate term of 4 years and 73 days to 3 years by deducting the days spent in pre-sentence custody - that would raise a question whether such an approach is a legitimate exercise of the sentencing discretion, as referred to by Simpson AJA and N Adams J in Mandranis v R. [2] In my judgment, therefore, the Crown was right to concede this ground.

The applicant now seeks leave to appeal against the aggregate sentence imposed upon him, advancing two proposed grounds: "Ground 1: It is not apparent that the Court took into account the offender's pre-sentence custody when imposing an aggregate sentence of 3 [years] imprisonment; Ground 2: The sentence was manifestly excessive".

The Proceedings in the District Court

The matter had something of a complicated plea history. The offences referred to in [15] above were committed for sentence from the Local Court but were later set down for trial in the District Court, the applicant having refused to adhere to the pleas of guilty entered prior to committal. On what would have been the second day of the applicant's trial, the parties reached an agreement as to the facts and the applicant entered pleas of guilty to counts 2, 3 and 7 of an indictment containing 10 counts. The remaining counts proceeded as a trial before Craigie SC ADCJ sitting without a jury, with verdicts of not guilty returned by his Honour to the balance of the counts on the indictment.
His Honour proceeded to sentence hearing on 16 October 2020, imposing sentence on 25 November 2020.

The Crown Case

The Crown relied upon a statement of agreed facts which set out the circumstances of the offending conduct, and which were accepted by the sentencing judge.
In summary, the offences arose in the context of a domestic relationship that had broken down. The applicant and Ms Northam had lived together at an apartment in Parramatta for a period of some months in 2017. Ms Northam was involved with another man, Mr Bakker. She was in Mr Bakker's company on 3 January 2018. On the late evening of that day, the applicant and Ms Northam spoke by telephone, with the applicant questioning her as to her whereabouts, and whether she was with Mr Bakker. He told her that she could "get out" and that her clothes were "on the ground outside". He told her in a later text message that he was "going out".
Believing the applicant would not be at home, Ms Northam returned to the apartment, intending to collect her things. Whilst Mr Bakker waited for her in the driveway of the premises Ms Northam went to the apartment and packed up items of property. She and Mr Bakker then left in the rental car they were driving.
The applicant arrived home shortly after midnight on 4 January 2018. Minutes later Ms Northam and Mr Bakker returned to the apartment block, with Ms Northam going to the applicant's car to take a package from it. She and Mr Bakker again drove off.
Having seen that Ms Northam had been to the apartment and taken property from it, the applicant ran out of the apartment block. He entered a car driven by an unidentified male and drove off. Shortly after, Ms Northam and Mr Bakker saw a car following them, which they believed contained the applicant. Although they endeavoured to escape from the applicant, their vehicle was ultimately trapped in a dead-end lane, with the car in which the applicant rode blocking exit. The applicant approached Ms Northam and Mr Bakker, told them to get out of the car, and accused them of stealing from him. Mr Bakker contacted Triple Zero but the operator disconnected when Mr Bakker was unable to respond verbally.
Taking Ms Northam with him, the applicant drove off in the rental car, picking up Mr Bakker soon after. With Ms Northam driving, the three went to the applicant's apartment block, where the applicant again confronted Ms Northam and Mr Bakker about property taken from the apartment. He threatened Ms Northam, "[t]ell me now why you're leaving or I'll break your neck in two seconds". This conduct is reflected by the charge of intimidation, taken into account against count 3 on the Form 1 referred to above. Ms Northam called Triple Zero but did not speak during the call.
Now joined by the unidentified male, the applicant, Ms Northam, and Mr Bakker entered the apartment building and went to the applicant's unit. Ms Northam made a second silent call to Triple Zero. Later, the applicant took up a 20-centimetre knife and held the blade to Mr Bakker's chest. This conduct is reflected by count 2, an offence of being armed with intent to intimidate. The applicant then pointed the knife at Ms Northam and threatened to "cut [her] throat". Count 3, a second offence of armed with intent to intimidate, reflects this conduct. The applicant told Mr Bakker and Ms Northam that he was going to kill them for stealing from him.
Soon after, the applicant took Ms Northam to the car park of the apartment block. He was in possession of two knives. He searched the rental car whilst Ms Northam paced about. After the two spoke, Ms Northam opened the car's boot and, pushing her aside, the applicant searched it. When Ms Northam approached the applicant as he searched the boot area, the applicant elbowed her, took hold of her by her throat and pushed her backwards. This was caught by a surveillance camera operating in the carpark.
The applicant returned to his search of the boot. When Ms Northam moved closer to the rear of the rental car, he pushed her away. Soon after, Mr Bakker and the unidentified male joined the others in the carpark. Mr Bakker retrieved his things from the rental car and, having been told by the applicant not to come back to the area and not to steal from him, he left. Ms Northam again telephoned Triple Zero, but on this occasion she was able to ask for police to attend the premises.
By the time of making her call requesting assistance, Ms Northam had been with the applicant for about two and a half hours, from shortly after 12:14am to shortly after 2:42am on 4 January 2018. Mr Bakker had been with the applicant and Ms Northam for a slightly shorter period.
A call was placed by the authorities to Ms Northam's mobile telephone soon after. With the phone ringing, the applicant said to Ms Northam, "[y]ou dog, you fuckin' call them again". He went to the kitchen and took up a knife, threatening Ms Northam, "I swear I should just friggen kill you now and just leave". This conduct forms part of the conduct relied upon with respect to count 3.
Police officers responding to Ms Northam's Triple Zero call arrived and knocked on the door of the applicant's apartment. The applicant was arrested when he opened the door. When officers searched the rental car they found a laptop computer in the boot, three knives, and a taser - being a prohibited weapon - which was later found to be inoperable. A video of the applicant activating the taser some days previously was found on the applicant's mobile telephone. He was charged for possession and use of the taser under s 7(1) of the Weapons Prohibition Act.
Setting aside a traffic matter in 2011, the applicant's criminal history contained a conviction for reckless wounding from Campbelltown Local Court in November 2014, with respect to which a term of 15 months imprisonment was imposed. The NPP, varied on appeal from 6 months to 4 months and 9 days, was made subject to supervision. He also had a drug possession offence from April 2017 penalised by a fine.
A Sentencing Assessment Report ("SAR") dated 15 October 2020 was before the sentencing court. The applicant was noted to have had no formal education beyond his participation in an "Adult Migrant English" language programme on his arrival in Australia as a 21-year-old, and sporadic part-time employment in the construction industry. He had a history of mental health problems, managed by medication; and had used illicit drugs in the past, although he claimed not to have used drugs since being released from gaol in February 2020. The applicant acknowledged having "anger management problems", for which he had sought assistance, having completed a relevant Corrections programme. He was said to be making progress on the Positive Lifestyle Programme at the Salvation Army.
The applicant referred to his crimes as "a big mistake", and acknowledged that his actions were wrong, maintaining, however, that Ms Northam would have known that he would not have hurt anyone, and claiming that he used the knives "in anger to scare them". After some prompting, he acknowledged his conduct would have had an effect on the victims.
Mr Shavali was assessed as posing a medium risk of re-offending.
There was also some evidence in the Crown case relevant to the timing of the pleas of guilty, and information concerning time spent in custody. With respect to the latter, the parties advised the sentencing judge that the applicant had spent a total of 438 days in custody. He was held on remand from his arrest on 4 January 2018 to 23 March 2018, when he was granted bail. Having later breached the bail that was granted to him the applicant was returned to custody on 13 February 2019, remaining on remand until he was allowed bail by the Supreme Court on 6 February 2020.

The Applicant's Case

The applicant did not give evidence. He tendered a quantity of documentary evidence including medical reports and references.
In a letter he wrote to the sentencing court, the applicant said that he was an Iranian Kurd and had been persecuted when living in Iran. He came to Australia in January 2010 but was detained on Christmas Island for a period, before being granted entry to the mainland. He said he had done some work in construction after arriving. The applicant said that he had undertaken several courses during the months that he spent in prison on remand and had seen a doctor who had resolved problems with the medication he was taking, so that he now felt the medication had a very positive effect on him. He had also completed "a domestic violence programme to get help" and had been seeing a psychologist regularly. The applicant said that he was sorry for what he had done to Ms Northam and for "everyone that [he] hurt".
A report from a clinical psychologist, Sam Borenstein, that the applicant had consulted when awaiting trial for these offences was before his Honour. Mr Borenstein reported that he saw the applicant in custody via an audio-visual link on 28 January 2020 and later, after the applicant was granted bail, saw him in the community for treatment purposes. Mr Borenstein took a history from the applicant, who reported a background of using opium and methylamphetamine in Iran, and of mental illness. He said that the medication he was prescribed at about the time of the commission of the offences had a negative affect on him, and he had felt "out of control" and "not myself". He said his judgment had been adversely affected by the medication, and he had reacted inappropriately to Ms Northam and Mr Bakker "stealing" his property. Since being prescribed Endep his wellbeing had significantly improved, and he reported feeling happy.
Mr Borenstein thought that the applicant had formerly suffered with symptoms of depression and anxiety, symptoms originating in his marginalised childhood circumstances in rural Iran. Medications prescribed to him in 2014 to address hallucinations had a deleterious affect on the applicant, and these medications affected his mental state at about the time of the commission of the offences. Mr Borenstein reported that the applicant had expressed his remorse for his offences.
During time in custody in October 2019, the applicant reported problems sleeping, anger issues, anxiety and depression.
A mental health care plan prepared by the applicant's general practitioner in February 2020 noted that the applicant needed treatment for depression, anxiety, and an adjustment disorder. The applicant was prescribed Endep (or amitriptyline, an anti-depressant).
When in custody and on remand the applicant undertook a number of courses directed to perpetrators of domestic violence, as well as vocational courses.
He relied upon a schedule of "onerous bail conditions" in mitigation of sentence.

The Remarks on Sentence

Accepting that there had been some utility in the late pleas of guilty which the applicant entered to the charges, his Honour allowed a discount of 15% on the sentence that would otherwise have been imposed.
The sentencing judge regarded the applicant's conduct between the late evening of 3 January 2018 and the early morning of 4 January 2018 as "criminal, out of control and in some aspects highly threatening". His Honour noted the inherent seriousness of the offences contrary to s 33B(1)(a) of the Crimes Act and, further, that the offence taken into account on the Form 1 required "real reflection" in the sentence to be imposed for the principal offence.
His Honour observed that, having become aware that Ms Northam had attended the premises and taken her and, as the applicant believed, some of his property, the applicant "reacted in a sudden and quite extreme manner", pursuing Ms Northam and Mr Bakker as they drove away, and preventing them from leaving a lane into which they had driven by blocking their exit with his car. There followed an "extended interchange" during which the applicant made serious threats by brandishing a knife and using "particularly serious words". The final threat to Ms Northam was made after the applicant became aware that she had sought police assistance. His Honour rejected the applicant's assertion that Ms Northam would have been aware that he would not have hurt anyone.
With respect to the applicant's subjective case his Honour observed that the circumstances were "complex". He said: "He does have [a] short but quite significant criminal record. It includes a sentence imposed in 2014 for reckless wounding. Otherwise, his sole time in custody has been for the total period of 438 days in two broken periods that arose from his initial arrest in the present matters. The two broken periods were 79 days initially, and then after his release to bail for some 11 months he breached that bail; then being returned for 359 further days of custody before bail was again restored in the Supreme Court."
It was noted that the breaches of bail that had led to the applicant's reincarceration originated in the applicant's "continuing and deep involvement with the abuse of illicit substances".
The applicant's circumstances as a member of a marginalised community persecuted in his native Iran, who suffered deprivation during childhood, were noted, as was the applicant's flight from his homeland as a refugee. The trauma in the applicant's past had led to symptoms such as flashbacks and nightmares. His Honour set out the steps the applicant had taken to obtain treatment for his symptoms, including psychological counselling and undertaking social and vocational courses. He accepted that the applicant demonstrated "some insight and some contrition."
The sentencing judge noted the applicant's longstanding problem with illicit drugs, having commenced with opium abuse whilst still in Iran, a problem he attempted to tackle in that country by attendance at a service similar to Narcotics Anonymous. His Honour accepted that the applicant had been willing to seek out treatment for his anxiety and depression and had actively engaged in psychological counselling. He concluded: "The Crown has submitted to the contrary [i.e, that a term of imprisonment was required]. In particular, urging upon me the view that most certainly the s 5 threshold has been passed. I would, also most certainly find that is the case. The offending was extremely threatening, it was extended and it involved a knife, which is always a serious aspect of any offending. I do not overlook that the offender was also found to be in possession of an unlawful but nonetheless non‑functioning device."
His Honour regarded the applicant's reaction to the events on 3 and 4 January 2018 as "extreme", and noted that the applicant did not take the opportunity he had to "draw back" from them. The sentence imposed had to recognise the level of violence the applicant employed, and also the fact that the victims would have been truly fearful. The sentencing judge was however, satisfied that the applicant had "operated under the burden" of a mixture of inappropriate medication and mental health issues that had "compromised his ability to exercise control".
Weight was given to the applicant's disadvantaged background, his compromised capacity to exert self-control, the determined efforts he had made to advance his rehabilitation, the prospects for which were found to be good. Although his Honour applied the principle of general deterrence, it was not given full weight.
An aggregate sentence was imposed, to be served as an ICO, under the supervision of Corrective Services NSW, with the applicant directed to undertake 200 hours of community service work as part of the order.

The Proposed Appeal

As already noted, the applicant advances two proposed grounds, complaining that the sentencing judge does not appear to have taken the time spent by the applicant in pre-sentence custody into account when determining sentence; and that the sentence is manifestly excessive. The Crown conceded before this Court that ground 1 was made out.
That concession was properly made in my opinion. There was no issue before the sentencing judge that the applicant had spent a total period of 438 days in custody on remand, in two discrete periods, prior to the resolution of the matters by imposition of sentence. Section 24(a) of the Crimes (Sentencing Procedure) Act requires a sentencing court to take into account any time that an offender has spent in custody in relation to the offence.
Pre-sentence custody may be taken into account by a sentencing court by reducing a term of imprisonment by reference to the time spent on remand, by back-dating the commencement date of a custodial sentence, or even by imposing a type of sentence that would not otherwise have been appropriate. However, to demonstrate that the pre-sentence custody is dealt with, it must be clear that it has been taken into account, as was observed in Deron v R [2006] NSWCCA 73, at [9]: "There is no rule that a sentencing judge must take into account the period of pre-sentence custody by means of backdating the sentence, rather than by deducting the relevant period from the total sentence he proposes to impose. The important thing is that it be fully taken into account, and on the authorities in this Court, that it be demonstrated that it has been taken into account."
It may be that the sentencing judge took the 438 days of pre-sentence custody into account when determining the sentence to be imposed, by reducing the total term of the sentence imposed by that period. Since his Honour determined that the aggregate sentence of 3 years' imprisonment could be served by way of an ICO, he cannot have taken it into account by backdating the commencement of the sentence by 438 days. Section 71(1) of the Crimes (Sentencing Procedure) Act provides for an ICO to commence on the date on which it is made. Although it is difficult to see that the provision could have been interpreted in any other way, insofar as there was doubt as to the meaning of the provision and the consequential impossibility of backdating an ICO, such doubt has been removed by the decisions of Mandranis v R (2021) 298 A Crim R 260; [2021] NSWCCA 97 and R v Edelbi (2021) 105 NSWLR 133; [2021] NSWCCA 122.
It is not possible from the sentencing remarks to be certain that his Honour did take into account the time served in pre-sentence custody when determining the sentence to be imposed upon the applicant. Although it is very likely that the sentencing judge, a very experienced criminal lawyer and jurist, did have regard to the pre-sentence custody to reduce the overall term imposed on the applicant, that his Honour took that course cannot be determined from his remarks on sentence. There was only one reference by him to the 438 days that the applicant spent in custody, made in the context of considering the applicant's criminal history, and his relatively brief experience of a prison environment.
In those circumstances, leave should be granted to the applicant to advance ground 1, and the ground must be upheld.
On the basis that the Court concludes, in accordance with s 6(3) of the Criminal Appeal Act 1912 (NSW), that "some other sentence, whether more or less severe is warranted in law and should have been passed", the Court is required to re-sentence the applicant, consistent with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]-[43]. It is thus not strictly necessary to consider the proposed ground 2, a complaint that the sentence was manifestly excessive. For completeness, however, I note that, whilst I would grant leave to advance this ground, it is not one which I would uphold.
As the sentencing judge observed, the two offences contrary to s 33B(1)(a) of the Crimes Act were serious breaches of the criminal law. The conduct began when the applicant actively pursued Ms Northam and Mr Bakker and it continued over an extended period. The threats of injury and death that the applicant made were very serious and, since they were accompanied by the use and display of a knife, by which the applicant had the means to make good his threats, they must have been very frightening to the victims. The additional offence against Ms Northam could only have added to her fearfulness, as well as to the overall gravity of the offending. The applicant's claimed motivation for his crimes, that he thought Ms Northam had taken some of his property, could never justify or excuse what the applicant did.
That the applicant was a person who separately had possession of a prohibited weapon compounded his overall criminality. His criminal history, with a previous conviction for a serious offence of personal violence, and an entry indicative of illicit drug use, deprived the applicant of the leniency that might otherwise have been extended to him. It also confirms, as the applicant acknowledged, his ongoing problems with managing his anger.
Finally, domestic violence offences of this nature must be strongly denounced by the courts. There is never a role for violence in domestic life and relationships, and those who hold a contrary view, and act in accordance with that unacceptable view, must be held to account, and their conduct strongly condemned.
The applicant's personal history of persecution in Iran is very sad, and deserving of recognition - recognition given by the sentencing judge in giving Mr Shavali's traumatic upbringing and his mental health difficulties considerable weight in determining the sentence, and mitigating the impact of the principle of general deterrence because of it. His Honour's decision to order the sentence to be served by way of an ICO represented an additional measure of leniency afforded to the applicant.
I do not regard the sentence imposed upon the applicant as one that evidences some misapplication of principle, or which is so far outside the proper range of sentence that there must have been error: JJ v R [2020] NSWCCA 165 at [14].

The Re-Sentencing Discretion

Having found that there was error in the imposition of sentence at first instance, the Court is required to re-exercise the sentencing discretion, unless it is not of "the opinion that some other sentence whether more or less severe is warranted in law". Reaching that opinion has some complexities in this case.
The applicant relies upon the material that was before the sentencing court, together with his affidavit of 17 June 2022, in which he deposed that, pursuant to the ICO, he had regular contact with the Community Corrections Office ("CCO") until supervision was withdrawn, and he obeyed all directions given to him by his supervising officer. He has maintained treatment for his mental health issues, consulting a psychiatrist on several occasions, and continuing with recommended medication. He is working on a casual basis as a painter.
The question of re-sentence was raised with the applicant and the Crown during the hearing of the application. The applicant submitted that the Court should re-sentence him to an aggregate sentence of a lesser term than that imposed in the District Court, to be served by way of an ICO; or, alternatively, dispose of the proceedings without imposing any other penalty, pursuant to s 10A of the Crimes (Sentencing Procedure) Act. The Crown submitted that a further, shorter, sentence served as an ICO was open.
In accordance with the principle given in Parker v Director of Public Prosecutions (1992) 28 NSWLR 282, the applicant was warned that, even if a lesser sentence was imposed upon him by this Court, the outcome could subject him to greater restrictions on his liberties than those which presently apply. He wished to proceed with his appeal despite that possibility.
Having considered the evidence that was before the sentencing court and that contained in the applicant's recent affidavit and taking into account the pleas of guilty, the 438 days pre-sentence custody and the period of the existing ICO already served, I do not regard a sentence pursuant to s 10A of the Crimes (Sentencing Procedure) Act to be properly available. The applicant's crimes are too serious for that order to be made. The threshold set out by s 5(1) of the same Act has been crossed, and no penalty other than imprisonment is appropriate. That the applicant was subject to "onerous" bail conditions is not a feature that I have accorded much weight in coming to that view, given that the more restrictive conditions were imposed upon the applicant after he breached the bail initially allowed to him.
An aggregate sentence of imprisonment is an available option, with the commencement date or the term of sentence fixed to take into account the time served in custody, and the time spent subject to an ICO, as well as all of the features of the objective and subjective cases. Proceeding in that way would, however, require the applicant's entry into full-time custody, albeit for a relatively short period. That is an outcome which would see him disadvantaged by having succeeded in establishing error, an outcome which would be unfair to him and contrary to the interests of justice.
The sentence of imprisonment contemplated, a term of 13 months taking into account the time served in custody and subject to the existing ICO, could be served by way of an ICO, subject to compliance with s 4A(1)(b) and Pt 5 of the Crimes (Sentencing Procedure) Act. Section 66 requires that, in determining whether to make such an order, paramount consideration is given to community safety. On the basis of the evidence, I am satisfied that an ICO would not prejudice community safety and, in the unusual circumstances of this case, such an order would best address the applicant's risk of reoffending and meet the disparate objectives of s 3A of the above Act. An ICO is a "supervised order" as required with respect to domestic violence offenders by s 4A(1)(b) of the Act.
Although no recent SAR is available, the SAR of 15 October 2020 is before the Court and that, together with the other information before the Court, including correspondence concerning the withdrawal of CCO supervision, is sufficient to determine the applicant's suitability for an ICO. A sentence of 13 months imprisonment to be served by way of an ICO is, prima facie, "less severe" than that imposed upon the applicant at first instance. However, other features of an ICO must be considered.
Section 73(1) requires that the order is made subject to the "standard conditions". Pursuant to s 73(2) the standard conditions are: "73 Standard conditions … (2) The standard conditions of an intensive correction order are the following - (a) a condition that the offender must not commit any offence, (b) a condition that the offender must submit to supervision by a community corrections officer."
Whilst the standard condition provided by s 73(2)(a) imposes no obligation on the applicant greater than that which applies to all citizens, and cannot represent an additional unacceptable burden upon him, the condition provided by s 73(2)(b) will require the applicant to submit to supervision, in circumstances where he has already completed a period of supervision. This does represent an imposition on the applicant's liberty that he does not presently face. Thus, the imposition of a further ICO on the applicant, even one of a shorter duration, will have the effect of subjecting him to constraints on his liberty that do not presently apply. Arguably, by imposing a lesser sentence upon the applicant, the Court would place him in a less advantageous position than he now is.
Currently, the applicant enjoys almost unrestricted liberty. He entered the ICO imposed upon him in the District Court on the day sentence was imposed, 25 November 2020; that is, about 21 months ago. He was initially subject to the supervision of the CCO, but supervision was suspended on 25 August 2021, after the applicant was assessed as having a low risk of reoffending. The applicant attended to the community service component of the ICO and has no further obligations in that regard. The only constraints on his liberty that presently apply (other than the standard condition requiring him not to commit any offences) are the following requirements: 1. The applicant is required to notify the CCO if he changes address or contact details; 2. He must accept the resumption of supervision if directed; 3. He must not leave the State without permission from the CCO; and 4. He must not leave Australia without permission from the State Parole Authority.
At the hearing of the application, the Court raised with Senior Counsel for the applicant some of the practical issues that arise in circumstances where the Crimes (Sentencing Procedure) Act poses some difficulties on re-sentence, because of the impossibility of backdating an ICO, such that there is a real question as to the utility of this appeal. The applicant maintained his submission that he should be re-sentenced pursuant to a s 10A, or to a shorter term of imprisonment than the 3 years imposed at first instance, to be served as an ICO.
Having concluded that there was error in the sentence imposed at first instance, the question is whether, in all the circumstances that apply in the applicant's situation, some other sentence is warranted in law. I have concluded that it is not. For the Court to impose a meaningful - albeit less severe - sentence than was imposed in the District Court that fulfils the requirements of s 3A of the Act, would involve the imposition of restrictions on the applicant's liberty that he does not presently face. Notwithstanding the applicant's invitation to do so, it would be unfair to him to impose a greater burden on his liberty than is presently the case.
For that reason, whilst ground 1 must be upheld, the appeal should be dismissed.
I propose the following orders: 1. Grant leave to the applicant to appeal, 2. Dismiss the appeal.
CAVANAGH J: I agree with Wilson J. I would only wish to add that it is difficult to understand the point of this appeal in circumstances in which, by the time of the appeal, the applicant had completed a period of supervision. Plainly it would be to his disadvantage to be resentenced to a period in custody and, as identified by Wilson J, the imposition of a ICO on resentence would require him to again submit to supervision to which he is not currently subject.
The lack of utility in the appeal was raised with Senior Counsel for the applicant during oral exchanges on more than one occasion. The response was to suggest either a term of imprisonment less than 3 years to be served as an ICO or the application of s 10A of the Crimes (Sentencing Procedure) Act 1999.
Section 10A is in the following terms: Conviction with no other penalty (1) A court that convicts an offender may dispose of the proceedings without imposing any other penalty. (2) Any such action is taken, for the purposes of the Crimes (Appeal and Review) Act 2001 and the Criminal Appeal Act 1912, to be a sentence passed by the court on the conviction of the offender.
The proposition that the Court should resentence the applicant by convicting him and disposing of the proceedings without imposing any other penalty is without merit and unrealistic. It appears to have been raised as an answer to the Court's concerns as to how the applicant could possibly benefit from the appeal.
As Wilson J observed, it is not certain that the sentencing judge erred in failing to take account of the pre-sentence custody but I agree that it is possible that he may have and thus error has been established. However, there is little point in establishing error on the part of the sentencing judge when there is no benefit to the offender in doing so. It is regrettable that the question of whether there was any real advantage to the applicant in pursuing this appeal was not considered at some earlier time.

Endnotes

Deron v R [2006] NSWCCA 73 at [9].
[2021] NSWCCA 97 at [63] (Simpson AJA), [67] (N Adams J) ("Mandranis").
Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J).
[2019] NSWCCA 304 at [93]-[95].
(2021) 105 NSWLR 133; [2021] NSWCCA 122.
Mandranis at [59], [62].
Casella v R [2019] NSWCCA 201 at [105] (Beech-Jones J; Bathurst CJ and N Adams J agreeing). 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: 26 August 2022

(2021) 105 NSWLR 133

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