Vamadevan v The King

The relevant question in this case

Part IB of the Crimes Act commenced in 1990 and has been amended many times since. Part IB provides a detailed framework for imposing sentences and making orders for offenders convicted of a crime against federal law. Both parties agreed that the question posed here was one of construction of the provisions of Part IB of the Crimes Act. Neither party suggested that the provisions of ss 68, 79 or 80 of the Judiciary Act 1903 (Cth) were relevant to the questions posed by the present case.
When a NSW court makes an intensive correction order in relation to a federal offender as permitted by s 20AB of the Crimes Act, a provision to which we will return in detail, the order is made under s 20AB(1) itself and not under the NSW Sentencing Act. This is made clear by the language in the Crimes Act that refers to orders made under s 20AB(1): ss 16A(3), 20A(5)(c)(ic), 20AB(1B)-(6), 20AC, 20BQ(3) and 22(7).
Critically, when determining whether to make an order under s 20AB of the Crimes Act, s 16A of the Crimes Act governs the making of that order: 16A Matters to which court to have regard when passing sentence etc. - federal offences (1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. Note: Minimum penalties apply for certain offences - see sections 16AAA, 16AAB and 16AAC. (2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court: (a) the nature and circumstances of the offence; (b) other offences (if any) that are required or permitted to be taken into account; (c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character - that course of conduct; (d) the personal circumstances of any victim of the offence; (e) any injury, loss or damage resulting from the offence; (ea) if an individual who is a victim of the offence has suffered harm as a result of the offence - any victim impact statement for the victim; (f) the degree to which the person has shown contrition for the offence: (i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or (ii) in any other manner; (fa) the extent to which the person has failed to comply with: (i) any order under subsection 23CD(1) of the Federal Court of Australia Act 1976; or (ii) any obligation under a law of the Commonwealth; or (iii) any obligation under a law of the State or Territory applying under subsection 68(1) of the Judiciary Act 1903; about pre‑trial disclosure, or ongoing disclosure, in proceedings relating to the offence; (g) if the person has pleaded guilty to the charge in respect of the offence: (i) that fact; and (ii) the timing of the plea; and (iii) the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence; (h) the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences; (j) the deterrent effect that any sentence or order under consideration may have on the person; (ja) the deterrent effect that any sentence or order under consideration may have on other persons; (k) the need to ensure that the person is adequately punished for the offence; (m) the character, antecedents, age, means and physical or mental condition of the person; (ma) if the person's standing in the community was used by the person to aid in the commission of the offence - that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates; (n) the prospect of rehabilitation of the person; (p) the probable effect that any sentence or order under consideration would have on any of the person's family or dependants. (2AAA) In determining the sentence to be passed, or the order to be made, in respect of any person for a Commonwealth child sex offence, in addition to any other matters, the court must have regard to the objective of rehabilitating the person, including by considering whether it is appropriate, taking into account such of the following matters as are relevant and known to the court: (a) when making an order - to impose any conditions about rehabilitation or treatment options; (b) in determining the length of any sentence or non-parole period - to include sufficient time for the person to undertake a rehabilitation program. (2A) However, the court must not take into account under subsection (1) or (2), other than paragraph (2)(ma), any form of customary law or cultural practice as a reason for: (a) excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates; or (b) aggravating the seriousness of the criminal behaviour to which the offence relates. (2AA) Subsection (2A) does not apply in relation to an offence against the following: (a) section 22 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984; (b) sections 15A, 15C, 17B, 22A, 27A, 74AA, 142A, 142B, 207B, 354A, 355A and 470 of the Environment Protection and Biodiversity Conservation Act 1999; (c) section 48 of the Aboriginal Land and Waters (Jervis Bay Territory) Act 1986; (d) sections 69 and 70 of the Aboriginal Land Rights (Northern Territory) Act 1976; (e) section 30 of the Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987; (f) any other law prescribed by the regulations that relates to: (i) entering, remaining on or damaging cultural heritage; or (ii) damaging or removing a cultural heritage object. (2B) In subsection (2A): criminal behaviour includes: (a) any conduct, omission to act, circumstance or result that is, or forms part of, a physical element of the offence in question; and (b) any fault element relating to such a physical element. (3) Without limiting the generality of subsections (1), (2) and (2AAA), in determining whether a sentence or order under subsection 19B(1), 20(1) or 20AB(1) is the appropriate sentence or order to be passed or made in respect of a federal offence, the court must have regard to the nature and severity of the conditions that may be imposed on, or may apply to, the offender, under that sentence or order. … (emphasis added)
Section 16A(1), in terms, provides that in determining the order to be made, the Court must "make an order that is of a severity appropriate in all the circumstances of the offence". An order made under s 16A(1) plainly includes an order made under s 20AB, including an intensive correction order. So much is clear from the terms of s 16A, in particular s 16A(3) and the specific reference to matters the court "must have regard to" when making an order under s 20AB(1). The matters the court must have regard to in making an intensive correction order under s 20AB, are expressed to be without limitation upon "the generality of subsections [16A] (1), (2) and (2AAA)"; that is, 16A(1), (2) and (2AAA) apply to the making of an intensive correction order under s 20AB(1).
In Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, Gaudron, Gummow and Hayne JJ made clear that in Part IB of the Crimes Act, there is no statutory obligation upon the sentencing court to give particular weight to one or other of the identified purposes in sentencing certain kinds of offender: [71] …What is notably absent from s 16A is any guidance about the accommodation that is to be made between these various factors or between these factors and the general requirement that the sentence be of a severity appropriate in all the circumstances of the offence. There is no statement of the kind found, for example, in the Sentencing Act 1991 (Vic) (s 5) of the purposes for which sentences may be imposed, and there is no statutory requirement which obliges a sentencer to give particular weight to one or other of those purposes in sentencing certain kinds of offender.127 Section 16A obliges the sentencer to take all of them into account and effect must be given to that legislative command. (emphasis in original)
Footnote 127 in Wong is instructive. Gaudron, Gummow and Hayne JJ there contrasted the requirements of s 16A with those contained in the Sentencing Act 1991 (Vic) (the "Victorian Sentencing Act") which provided in s 6D(a) that in sentencing a "serious offender" (as defined) the Court was directed to regard the protection of the community from the offender as "the principal purpose for which the sentence is imposed".
The conclusion of the High Court in Wong is inconsistent with application in federal sentencing of the statutory command in s 66 of the NSW Sentencing Act that "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".
In Johnson v The Queen (2004) 218 CLR 451; [2004] HCA 15, the High Court said that, except to the extent stated in ss 16A and 16B of the Crimes Act, general common law and not peculiarly local or state statutory principles of sentencing are applicable when state courts sentence offenders for federal offences: at [15] (Gummow, Callinan and Heydon JJ). That common law principles may apply follows from the use of the words "of a severity appropriate in all the circumstances of the offence ..." in s 16A(1) and the introductory words "[i]n addition to any other matters ..." to s 16A(2) of the Crimes Act. It is also consistent with there being one common law of Australia: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 563; [1997] HCA 25; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36 at [66].
There is no hierarchy of matters to be taken into account in s 16A of the Crimes Act, and it is well settled that s 16A obliges the sentencing court to take all of them into account. Effect must be given to that legislative command. It is not possible to apply s 16A of the Crimes Act while also applying s 66 of the NSW Sentencing Act by giving paramount consideration to community safety because the two approaches are fundamentally incompatible. Nor is it possible, given the statutory command in s 16A, to engage the third stage of sentencing in a manner inconsistent with the matters s 16A directs must be taken into account in deciding whether to make an order, including an intensive correction order. It is not possible to reconcile the application of s 16A of the Crimes Act, in deciding whether to make an order under s 20AB(1), with the considerations required to be treated as "paramount" by s 66 of the NSW Sentencing Act.
In Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [24], French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said: … s 16A does not permit the making of generalisations across all forms of federal offence about how individual sentences are to be fixed. To attempt such a generalisation would depart from the injunction that the sentencing court "must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.
Six members of the Court in that case rejected a contention that there is or should be "a norm or starting point, expressed as a percentage" for the period of imprisonment that a federal offender should actually serve in prison before release on a recognizance release order. Their Honours said: [38] … references to a "norm" will necessarily mislead if they distract attention from the applicable statutory provisions: Pt IB of the Crimes Act. They will mislead if they suggest that the same kind of sentencing outcome will generally be expected in the sentencing of any federal offender. That is, they will mislead if they are read as saying that the same proportionate relationship should (or should normally) exist, between the time that is to be served in prison and the length of the head sentence imposed, in relation to all federal offences, no matter whether the offender has defrauded the Commonwealth, has been knowingly concerned in the importation of prohibited imports, or has committed some other federal offence. They will mislead if they suggest that matters such as the absence of prior convictions, or the willingness to co-operate with authorities, can have no effect on fixing a non-parole period, or time to be served before a recognizance release order takes effect, greater than a stated small percentage of the head sentence. They will mislead if they suggest that the offender must demonstrate some special circumstance to warrant departure from a set, mathematically calculated, relationship between the time to be served in custody and the head sentence.
Section 66 of the NSW Sentencing Act, which is a condition on the discretionary power to make an intensive correction order in relation to a NSW offender, elevates community safety in every case as a "paramount consideration" in deciding whether to make an intensive correction order. That approach is inconsistent with the requirements of s 16A of the Crimes Act, as explained in Hili. The conclusion of the majority in Stanley was that failure to comply with the requirements of s 66 of the NSW Sentencing Act constituted jurisdictional error.
As Kiefel CJ, Gageler and Keane JJ explained in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 the label "jurisdictional error" is applied following a process of statutory construction. We do not accept the applicant's submission that the Crown submission in the present case that s 66 does not go to whether the Court is empowered to make the intensive correction order "contradicts the reasoning of the majority in Stanley". The relevant question of construction here is not the proper construction of the NSW Sentencing Act the subject of Stanley but, rather, the correct construction of provisions of Part IB of the Crimes Act.
It is against that background that the critical question of construction in the present case arises. As we have said, s 20AB(1) of the Crimes Act enables a court sentencing a federal offender to make an intensive correction order. As we have explained, in determining the "order to be made", which includes an intensive correction order, it is the provisions of s 16A which are governing. Section 20AB provides: 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.
Section 20AB explicitly permits a sentencing court to make an order "of a kind" identified in s 20AB(1AA). Section 20AB(1AA) includes an order "known as" an intensive correction order, which is listed in paragraph (a)(ix). What an intensive correction order involves is given content by the relevant State or Territory law, specifically ss 70-73B of the NSW Sentencing Act. These provisions give the intensive correction order sentencing option under s 20AB(1AA)(a)(ix) its "colour and meaning": Homewood v R [2023] NSWCCA 159 at [4] per Beech-Jones CJ at CL.
Section 20AB(1) enables the making of an order with respect to a federal offender where under the law of the State or Territory, relevantly the NSW Sentencing Act, a court is "empowered to … make such an order, in respect of a State or Territory offender in corresponding cases" (emphasis added). Corresponding cases are cases involving an offender in the same circumstances. It was common ground, albeit for different reasons, that the Court was so empowered. Neither party submitted that, as s 66 of the NSW Sentencing Act was inconsistent with Part IB of the Crimes Act, intensive correction orders could not be imposed on federal offenders in NSW.
As we have explained, application of s 66 of the NSW Sentencing Act, which elevates community safety to a paramount consideration in deciding whether or not to make an intensive correction order, is inconsistent with the requirements of s 16A of the Crimes Act, which must be applied in deciding whether to make an intensive correction order.
The critical constructional question is thus whether, as the applicant submits, "empowered to … make such an order, in respect of a State or Territory offender in corresponding cases" in s 20AB(1) should be construed as meaning that the discretionary power in s 66 of the NSW Sentencing Act applies in determining whether or not to make an intensive correction order under s 20AB of the Crimes Act, despite s 66 of the NSW Act requiring a process of reasoning inconsistent with applying s 16A of the Crimes Act or whether, as the Crown submits, a court is "empowered" to make an intensive correction order in corresponding cases within the meaning of s 20AB(1) of the Crimes Act when the provisions of the NSW Sentencing Act which allow the making of such an order to be considered have been satisfied, which provisions do not include s 66 of the NSW Sentencing Act. The Crown submitted that "the conditions which must be satisfied before an ICO is available are different from, and must be contrasted with, the matters to be considered in the exercise of the discretion whether to exercise the power where that power is available".
The Crown's contention is that the legislative purpose to s 20AB is clear and the legislature did not intend that a court sentencing a federal offender should be obliged to consider making an order on a basis inconsistent with the principal statutory command in s 16A of the Crimes Act which applies to the making of that order. We have decided that the Crown's construction of s 20AB is correct. We accept Dr Higgins SC's submission on behalf of the Crown that: Section 20AB(1)(b) is concerned with when the power is available, i.e., in respect of what kinds of offences or offenders is it available, rather than the conditions of the lawful exercise of the power under State law in individual cases.
A court is "empowered" to impose an intensive correction order on a NSW offender in corresponding cases when the specific provisions (including disentitling provisions) which limit the availability of an intensive correction order as a mode of disposition have been satisfied. We have identified the relevant provisions at [11] above. The conditions which must be satisfied before a court is "empowered" to make an intensive correction order in corresponding cases within the meaning of s 20AB(1) of the Crimes Act, in context, means only the specific provisions which limit the availability of an intensive correction order as a mode of disposition. The Crown is correct that this is a different question to the matters which condition the discretionary power to make or refuse to make an intensive correction order. Such matters do not go to the existence of power, but to the proper exercise of that power.
The text, context and purpose of s 20AB(1) of the Crimes Act does not require the Court when sentencing a federal offender in NSW to apply provisions in the NSW Sentencing Act that condition the exercise of the power to make such "sentence or order" under that Act; in this case s 66 of the NSW Sentencing Act. Determination of whether or not to make an intensive correction order is a matter about which the Crimes Act makes its own detailed and specific provision in s 16A.
The construction of s 20AB(1) we prefer is underlined by s 20AB(3) which sets an explicit limit to the extent that State and Territory laws are picked up by s 20AB(1): (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). (emphasis added)
Three matters should be noted about s 20AB(3). The opening words emphasise that an order in relation to a federal offender is made under s 20AB(1). Secondly, the provisions of the NSW Sentencing Act with respect to an intensive correction order apply in relation to an intensive correction order made under s 20AB(1) so far as those provisions are capable of application and are not inconsistent with the laws of the Commonwealth. Thirdly, the limits s 20AB(3) provides upon application of State or Territory laws to orders made in relation to federal offenders gives important context to the meaning in 20AB(1) of the phrase "empowered … to … make such an order, in respect of a State or Territory offender in corresponding cases".
The purpose of s 20AB(1)(b) of the Crimes Act (see [31] above) is to make available to federal offenders State and Territory sentencing options as modes of disposition. Whether or not an order referred to in s 20AB(1AA) which includes an intensive correction order should be made, however, is governed by Part IB of the Crimes Act, and s 16A in particular. When s 16A and s 20AB(1)(b) are read together, it is clear that the Crimes Act intends to pick up State sentencing options when empowered to do so, that is, when such options are not prohibited by any disentitling provision. Part IB of the Crimes Act does not intend to pick up the State or Territory provisions which govern the exercise of that power once it becomes available. The purpose of s 20AB(1) is to identify when an intensive correction order is a possible or available disposition. Correctly construed, s 20AB does not direct a court about what matters to consider in deciding whether to make an order under the section.
We would not lightly conclude that, absent express language, the Commonwealth Parliament would willingly subordinate federal sentencing to sentencing considerations identified by a State legislature which are inconsistent with s 16A of the Crimes Act. Section 20AB(1)(b) should not, as a matter of context and purpose informed by s 20AB(3), be understood to apply State or Territory provisions which govern the exercise of the power to make an order; the matters to be taken into account in exercising the power to decide whether or not to make an order are the subject of s 16A.
The explicit limits in s 20AB(3), that the applied provisions are not inconsistent with the laws of the Commonwealth, provides strong purposive support for the conclusion that the words "empowered … to … make such an order, in respect of a State or Territory offender in corresponding cases" in s 20AB(1) are not intended to make mandatory in federal law all requirements for the making of an order under State law where there is power to make such an order.
To summarise our conclusion as a matter of statutory interpretation, the Commonwealth Parliament plainly did not intend that all State and Territory provisions which govern the exercise of a power to impose a particular type of order are to be applied in federal sentencing. To the contrary, s 20AB(3) provides a strong indication that the Parliament intended that "empowered … to … make such an order, in respect of a State or Territory offender in corresponding cases" means only that the specific provisions which limit the availability of an intensive correction order as a mode of disposition have been satisfied. Provisions in State and Territory law that condition the exercise of the power to make such a "sentence or order" are not encompassed within s 20AB(1). This is because the Commonwealth Parliament in s 16A of the Crimes Act has explicitly identified for itself the matters relevant to determining whether or not to make an order under s 20AB.
Another matter of context in determining the meaning of the words "empowered … to … make such an order, in respect of a State or Territory offender in corresponding cases" is s 20AB(1AA). The breadth of orders potentially available in relation to federal offenders in each State or Territory tends in favour of a construction of the words "empowered … to …make such an order, in respect of a State or Territory offender in corresponding cases" as applying to the existence of the power to make the relevant orders rather than applying to provisions which condition the exercise of the power. As we have said, the construction proposed by the applicant of incorporating all State and Territory laws which condition the exercise of the power to make the broad range of orders identified in s 20AB(1AA) would have the effect of substantially undermining the statutory command in s 16A. We do not accept the applicant's submission that s 20AB(1AA) can only "sensibly be interpreted" as applying all the provisions of the NSW Sentencing Act, including compliance with s 66, in federal sentencing. The language used in s 20AB(1AA) supports the construction we prefer. Section 20AB(1AA) applies to an order "known as" an intensive correction order. A court sentencing a federal offender is also authorised to make an order "similar to" an order to which s 20AB(1AA)(a) applies: s 20AB(1AA)(b). Such language is consistent with "empowered" in s20AB(1)(b) referring to the existence of the power to make the relevant order, or one similar it, rather than referring to provisions which condition the exercise of the power, which provisions are dealt with in federal sentencing in s 16A. If the Commonwealth Parliament had intended that the detailed provisions of s 16A should not apply to any sentencing option identified in s 20AB(1AA), it could easily have so provided; it did not.
A further matter tending in favour of the conclusion that s 20AB (and s 20AB(1AA)) should not be understood as providing for "dispositions available to State offenders under State law" is the detailed provisions made by s 20AC of the Crimes Act which govern the consequences of a failure to comply with an order made under s 20AB(1). Section 20AC is completely inconsistent with the NSW Sentencing Act provisions governing the same subject matter in that the prescriptive federal regime requires breaches of an intensive correction order to be dealt with by a court, which has power by s 20AC(6) to revoke the order whereas the NSW Sentencing Act has its own prescriptive regime whereby breaches of an intensive correction order are dealt with by community corrections officers and the NSW Parole Authority, which is given the power to revoke the order: ss 163 and 164 of the Crimes (Administration of Sentences) Act 1999 (NSW). The detailed and inconsistent treatment in the Crimes Act of the consequences of a failure to comply with an order made under s 20AB(1) tends strongly against the applicant's construction of s 20AB as providing "dispositions available to State offenders under State law".
There is authority about a closely related question from the Victorian Court of Appeal which supports the conclusion we have reached concerning s 20AB. In Atanackovic v The Queen (2015) 45 VR 179; [2015] VSCA 136, the Victorian Court of Appeal (per Weinberg, Kyrou and Kaye JJA) drew attention to the inconsistency between applying s 16A on the one hand (as the Crimes Act requires) and the Victorian statutory sentencing regime and case law on community correction orders (which replaced, inter alia, intensive correction orders in Victoria) on the other. Atanackovic, in common with the present case, involved sentencing for federal offences where the Crown conceded that an error had been made by a sentencing judge and the Court of Appeal was obliged to resentence (including consideration of whether any lesser sentence was warranted). In conducting the resentencing, the Crown accepted that the community correction orders regime could be applied via s 20AB(1) of the Crimes Act to federal offenders but submitted, as here, that certain provisions of the Victorian Sentencing Act could not apply to sentencing federal offenders to a community correction order: at [53]. Part of the Victorian Sentencing Act at the relevant time was titled "Governing Principles". Section 5(4) and 5(4C) provided that: (4) A Court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender. (4C) A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community corrections order to which one or more of the conditions referred to in sections 48F,48G,48I and 48J are attached.
The Victorian Court of Appeal held that a Victorian guideline judgment, Boulton v The Queen [2014] VSCA 342, which contained principes that the Victorian Sentencing Act required a sentencing court in State matters to take into account, could not be accommodated by s 16A of the Crimes Act. Further, the guideline judgment was not picked up by s 80 of the Judiciary Act (Cth). As already noted, neither party asserted that s 80 was relevant to the present case.
The principal reason that the guideline judgment (given force by the Victorian Sentencing Act) did not apply to a federal offender was that the guideline judgment's process of reasoning was inconsistent with the approach to sentencing federal offenders mandated by s 16A(1) and (2). The Court held that the guideline judgment "espouses an approach to sentencing which emphasises the advantages of a [community correction order] compared to imprisonment and requires sentencing judges to take into account those advantages before concluding that imprisonment is the only sentencing option in a particular case"; it "does not set out a discrete sentencing principle": at [98].
The Court explained, at [99], that "the matters in s 16A(2) are of such a nature that, when applied to an individual offence or offender, they point to either favourable or unfavourable considerations in terms of the severity of the sentence to be imposed for the purposes of s 16A(1). In other words, the matters are inherently relevant to the instinctive synthesis that a sentencing court must undertake in making an order applying to a federal offender. The approach in the guideline judgment, on the other hand, does not supply a sentencing consideration that is relevant to the instinctive synthesis but, rather, involves a process of reasoning for preferring one sentencing option over another after all otherwise applicable sentencing considerations have been taken into account as part of that synthesis". That approach to sentencing cannot be accommodated by s 16A because "it is not a 'matter' that can harmoniously supplement the matters set out in s 16A(2)": at [99].
Similar reasoning applies here. As we have said, s 16A applies to the making of an order, including the making of an intensive correction order. The matters in s 16A(2) are of such a nature that, when applied to an individual offence or offender, they point to either favourable or unfavourable considerations in terms of the severity of the sentence, including any order to be made. In other words, the matters in s 16A are inherently relevant to the instinctive synthesis that a sentencing court must undertake in sentencing a federal offender, including in deciding whether to make any order. We reject the applicant's submission that s 66 of the NSW Sentencing Act "does not inherently favour one sentencing outcome versus another". The proper application of s 16A of the Crimes Act is inconsistent with the statutory command in s 66 of the NSW Sentencing Act that community safety be the "paramount consideration" in deciding whether to make an intensive correction order and the consideration of which "will usually have a decisive effect on the decision to make, or refuse to make, an ICO, unless the relevant evidence is inconclusive": Stanley at [76]. To elevate community safety as a paramount consideration, above any other factor in deciding whether to make an intensive correction order, is inconsistent with the command in s 16A(2) of the Crimes Act.
There is another important insight arising from Atanackovic. The Victorian Court of Appeal pointed out at [102] that s 16A(3) of the Crimes Act expressly provides for how the availability of a community correction order in accordance with s 20AB(1) of that Act is to be taken into account by a sentencing court. Section 16A(3) states that, in determining whether a sentence or order under s 20AB(1) (including a community correction order) is the appropriate sentencing option, "the court must have regard to the nature and severity of the conditions that may be imposed on, or may apply to, the offender, under [a community correction order]". This requirement is different in form and emphasis from the question posed by the guideline judgment. The Victorian Court of Appeal concluded that the express requirement in s 16A(3) left no room for the application of the guideline judgment.
The same conclusion should be drawn here. The requirement imposed by s 16A(3) that, in determining whether an [intensive correction] order is the appropriate sentencing option, "the court must have regard to the nature and severity of the conditions that may be imposed on, or may apply to, the offender, under the [intensive correction order]", has a fundamentally different focus to s 66 of the NSW Sentencing Act which requires that the "paramount" consideration be community safety.
Finally, in Atanackovic at [104], the Victorian Court of Appeal returned to s 5(4C) of the Victorian Sentencing Act which we have set out above. The Court pointed out that the section, which has no counterpart in the Crimes Act, gives express pre-eminence to making a community correction order over imprisonment in a way that ss 16A and 17A(1) do not. The same conclusion should be drawn here. Simply expressed, s 66 of the NSW Sentencing Act, which governs the exercise of the discretionary power in s 7, gives express pre-eminence to the "paramount consideration", community safety, in a way that ss 16A and 17A(1) do not. Section 66 of the NSW Sentencing Act, which governs the exercise of the discretionary power to impose an intensive correction order is inconsistent with s 16A and, upon the correct construction of s 20AB(1) is not to be applied to making an order under that section.
In relation to the correct construction of s 20AB(3), Atanackovic has been referred to with approval in this Court: Lee v R [2020] NSWCCA 307, especially at [55]-[57] per Johnson J with whom Wilson and Wright JJ agreed.
It follows from the foregoing analysis that, in resentencing, the NSW intensive correction orders regime is available to be applied to a federal offender, as the court is "empowered… in corresponding cases" within the meaning of s 20AB(1) of the Crimes Act to make an order in the present case but that s 66 of the NSW Sentencing Act does not (as a matter of construction of s 20AB of the Crimes Act) apply in considering whether or not to impose an intensive correction order upon a federal offender.
Accordingly, the steps to be undertaken by a sentencing court before an intensive correction order can be imposed on a federal offender under s 20AB(1) of the Crimes Act are as follows: 1. First, the sentencing court must be satisfied "after having considered all other available sentences" that "no other sentence is appropriate in all the circumstances of the case" other than a sentence of imprisonment: s 17A(1). 2. Secondly, the sentencing judge must "impose a sentence … that is of a severity appropriate in all the circumstances of the offence": s 16A(1). 3. Thirdly, if none of the disentitling provisions contained in the NSW Sentencing Act (including the identified provisions of the Crimes Act and the Criminal Code summarised above at [11]) apply, then the sentencing court may consider whether or not to impose an intensive correction order. In doing so, the sentencing judge is obliged to consider the matters in s 16A of the Crimes Act and not s 66 of the NSW Sentencing Act. The sentencing court must, "in addition to any other matters", take into account such of the matters in s 16A(2) "as are relevant and known to the court".
It may be accepted, as the respondent submitted, that a consequence of that conclusion is that federal offenders in NSW the potential subject of an intensive correction order are, in relation to the application of s 66 of the NSW Sentencing Act, treated differently from NSW offenders. NSW offenders will be subject to s 66 NSW Sentencing Act considerations, whereas federal offenders in NSW will not. However, applying s 66 of the NSW Sentencing Act to the sentencing of federal offenders distorts equality of treatment among federal offenders in a potentially significant way; a federal offender sentenced in NSW would be sentenced in accordance with "paramount" considerations that are not applicable if they were sentenced in other states. Those "paramount" considerations are inconsistent with the considerations Part IB requires be taken into account for all other federal offenders.
The making of an intensive correction order without considering the matters identified in s 66 of the NSW Sentencing Act (s 3A and the "paramount" consideration of community safety) is the inevitable consequence of the scheme of federal sentencing where the Commonwealth Parliament has provided an extensive scheme for sentencing federal offenders in Part IB of the Crimes Act. An intensive correction order for federal offenders is not imposed under the NSW Sentencing Act but under s 20AB(1) of the Crimes Act. An intensive correction order is made available to federal offenders in terms that direct that s 16A identifies the factors to be considered by a court and the manner in which those factors are to be taken into account. An intensive correction order under s 20AB, if made, is still recognisable as an intensive correction order insofar as the same conditions as to the existence of power to make an order must be met and insofar as the content of the disposition (that is, what it can require the offender to do) takes its colour from the NSW Sentencing Act. The exercise of the discretion whether or not to make an intensive correction order, however, is governed by s 16A of the Crimes Act and not s 66 of the NSW Sentencing Act.
We acknowledge that three earlier cases in this Court have reached a different conclusion, albeit that the argument developed by the CDPP here was not advanced in any of those cases. Strictly speaking, as the argument we have accepted was not put in any of those cases we need be satisfied, as we are, merely that those cases are wrong. In McGregor, this Court held that it was entitled to overturn one of its own decisions without needing to find that it was "plainly wrong", since the point in question was not part of the ratio of the previous case: at [55]-[56]. We respectfully agree and the same conclusion should be drawn here.
The principal decision is Chan v R [2023] NSWCCA 206, which was followed in AM v R [2024] NSWCCA 26 and Khanat v R [2024] NSWCCA 41. Those subsequent cases do not provide any additional reasons to Chan. Chan was not the outcome of a series of cases in which relevant principles were worked through. For the reasons that follow, Chan, AM and Khanat should be overruled.
Kirk JA in Chan at [8]-[9] considered that to apply s 66 and Part 3A of the NSW Sentencing Act "is simply an aspect of applying the State ICO scheme as picked up by s 20AB of the federal law". As the Court recently explained in McGregor (at [82]), both parties in Chan submitted that s 66 of the NSW Sentencing Act applied by reason of s 20AB(3) to federal sentencing "without translation". Kirk JA considered it important that "whether to impose an ICO is a distinct stage of sentencing" which may appropriately be subject to State rather than federal sentencing principles. Respectfully, his Honour's reasoning overlooks the application of ss 16A(1), 16A(2) and 16A(3) to the making of orders under s 20AB, including intensive correction orders. Section 16A(3) leaves no room in our opinion for a "distinct stage of sentencing" inconsistent with s 16A of the Crimes Act when determining whether an intensive correction order is the appropriate order to be made in respect of a federal offence and the joint submission in Chan that s 20AB(3) permits s 66 of the NSW Sentencing Act to be applied consistently with Part IB of the Crimes Act in deciding whether to make an intensive correction order for a federal offender was not supportable. In saying this, we make clear that we do not accept the Crown submission in the present case that s 20AB(3) applies only to provisions applying after an order (in this case an intensive correction order) is made. In context, s 20AB(3) provides specific authority permitting State and Territory law sentencing outcomes to be applied to federal offenders, but only to the extent that those State and Territory provisions are not inconsistent with the laws of the Commonwealth.
In Chan, his Honour found, consistent with the course then being urged by the Crown (also represented by the CDPP), that s 20AB(3) "picked up" the whole of s 66 of the NSW Sentencing Act, including the reference to s 3A of the NSW Sentencing Act (in preference to Part IB of the Crimes Act) and the requirement in s 66(2) of the NSW Sentencing Act to treat community safety as the paramount consideration when conducting the third, discretionary, step in deciding to make an intensive correction order. We respectfully disagree with this construction of the Crimes Act. As we have said, s 66 of the NSW Sentencing Act is inconsistent with s 16A of the Crimes Act. A construction of s 20AB which is consistent with the application of s 16A to the making of an intensive correction order rather than one which requires an approach inconsistent with s 16A to be applied is to be preferred. We also note that, in reaching the conclusion he did, his Honour's attention was apparently not drawn to Atanackovic or Lee.
In Chan at [92], N Adams J (with whom Rothman J generally agreed) gave only tentative support to the application of s 66 of the NSW Sentencing Act to federal offenders. Her Honour explained that "[a]lthough the sentencing judge was required to sentence the offender under the Crimes Act (and to have regard to s 16A in doing so), she was also asked to impose an aggregate sentence on the offender and to consider the imposition of an ICO, both of which required her Honour to apply NSW law". The acceptance by her Honour of the proposition that s 66 of the NSW Sentencing Act applied was tentative at best: [96] Similarly, the provisions of the Sentencing Act concerned with ICOs, including ss 7 and 66, could only operate in relation to the applicant insofar as federal law picked them up and applied them. Section 20AB of the Crimes Act provides for "additional sentencing alternatives" and s 20AB(1AA)(a)(ix) expressly provides for "an intensive correction order". There is no other facilitative provision in the Crimes Act analogous to s 66 of the Sentencing Act but, as Basten JA observed in Mourtada at [20] in picking up the power under State law to impose an ICO, s 20AB also picks up the procedural steps governing the operation of the State provision.
The case referred to in this passage by N Adams J, Mourtada v The Queen [2021] NSWCCA 211, does not present an obstacle to acceptance of the Crown's submissions in this case. In Mourtada, Basten JA said: [20] 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.
That is, Basten JA was asked to assume that s 66 applied to a federal offender. Moutarda is not, therefore, authority for the point.
It is significant that Beech-Jones CJ at CL had earlier explicitly left the point open in Homewood: [4] The provisions of s 20AB make it clear that the various sentencing options specified in s 20AB(1AA) take their colour and meaning from the provisions of the relevant 'law of the State or Territory' (s 20AB(1)(b)).
In Homewood, Beech-Jones CJ at CL did not determine that s 66 applies. To the contrary, his Honour identified the present issue as unresolved: [7] Had an ICO been an available sentencing option in this case, two further questions would have arisen out of the Crown's submission that the objective seriousness of the applicant's offending precluded consideration of an ICO. The first question is whether that submission is itself precluded by the judgment of Gordon, Edelman, Steward and Gleeson JJ in Stanley v Director of Public Prosecutions (NSW) (2023) 97 ALJR 107 ("Stanley"), especially at [73]-[77]. The second question is how that part of the reasoning in Stanley along with s 66 of the Sentencing Act upon which it is based engages with the balance of the provisions of the Crimes Act especially s 16A (Al Am Ali v R [2021] NSWCCA 281 at [1]). However, given the conclusion I have reached about the availability of an ICO, it is not necessary to address those issues.
In Al Am Ali v The Queen [2021] NSWCCA 281, Beech-Jones CJ at CL had earlier said: [1] In joining the orders made on 19 November 2021 dismissing the appeal I was satisfied that no lesser sentence was warranted in law (Criminal Appeal Act 1912 (NSW), s 6(3)). I reached that state of satisfaction regardless of whether the consideration of whether to make an Intensive Correction Order in resentencing was determined having regard to the sentencing objectives in s 16A of the Crimes Act 1914 (Cth) or s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) …
For all of these reasons, s 66 of the NSW Sentencing Act does not apply to the discretion to impose an intensive correction order for a federal offender sentenced in NSW. To the extent they decide to the contrary, Chan, AM and Khanat should be overruled and no longer be followed.

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